Beth Healy v. Massachusetts Bay Transportation Authority (SPR 20221026)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2022 SPR22/1026 Stephen W. Shorey, Esq. Senior Counsel MassDOT/MBTA Office of the General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Shorey: On May 2, 2022, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the MBTA furnished a copy of this petition to the requestor, Beth Healy of WBUR. G. L. c. 66, § 10(d)(iv). In a letter dated April 15, 2022, Ms. Healy requested: “any presentations or documents provided to MBTA executives about the demolition of the Government Center Garage pertaining to the Bulfinch project.” In her April 15th letter, Ms. Healy states, “[i]n particular, we are seeking records that would show the project managers/participants explaining to the T what the demolition would entail, and any potential impact on the T. Potential search words in these records could include: demolition, MBTA impact, tunnels, JDC, dismantling. Please provide any such presentations or documents starting May 3, 2021.” Petition to Assess Fees A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Stephen W. Shorey, Esq. SPR22/1026 Page 2 May 6, 2022 The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first four (4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Current Petition In its May 2nd petition, the MBTA states the following: Due to the substance of the request, we believe that many of the responsive records will require redaction of security sensitive information under Massachusetts General Laws, Chapter 4, Section 7(26)(n). Further, although the MBTA need not seek the Supervisor’s permission to charge for redactions deemed required by law, responsive records may also contain information that is exempted from disclosure by the attorney-client privilege.

Stephen W. Shorey, Esq. SPR22/1026 Page 3 May 6, 2022 Redaction pursuant to Exemption (n) protects records that “relate to internal layout and structural elements, security measures, emergency preparedness…or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the Commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.” Specifically, responsive records in this matter may contain information about safety protocols, plans or schematics, operational details, and other material that cannot be shared publicly without jeopardizing public safety. Responsive records likely include communications are between MBTA personnel and MBTA attorneys, and include discussions seeking legal advice and/or opinion. Such communications were sent or received during the course of the client’s search for legal advice/opinion, they were made in confidence, and the privilege has not been waived. See Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 450, n.9 (2007). I find the MBTA has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the MBTA is permitted to charge for time spent segregating and redacting the requested records. Please note the requestor has the right to seek judicial review of this decision by commencing a civil action in the appropriate superior court. See G. L. c. 66, § 10(d)(iv)(4), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Beth Healy Julie Ciollo, Esq.