Ari Ofsevit v. Massachusetts Bay Transportation Authority (SPR 20221230)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 31, 2022 SPR22/1230 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite #7760 Boston, MA 02116 Dear Attorney Ciollo: I have 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. G. L. c. 66, § 10(d)(iv). In a letter dated May 11, 2022, Ari Ofsevit requested “[a]ny emails or other correspondence sent between May 7 and May 9 (inclusive) including any of the following words: hirail hi-rail high-rail highrail gauge” 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

Julie A. Ciollo, Esq. SPR22/1230 Page 2 May 31, 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 petition dated May 25, 2022, the MBTA states that “…responsive records may require redaction of records containing policy development and/or security-sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(d), (f) and (n). Therefore, the MBTA seeks the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” The MBTA notes, “[c]ertain parts of the request call for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law, which protects ‘inter- agency or intra-agency memoranda or letters relating to policy positions being developed

Julie A. Ciollo, Esq. SPR22/1230 Page 3 May 31, 2022 by the agency.’ Specifically the request asks for records that may include policy positions currently being developed by the MBTA. In this case, redactions must be applied to these records prior to production… In addition, certain parts of the request call for records likely to contain material that will require redaction under Exemption (n) to the Public Records Law…Specifically, responsive records in this matter may contain information about safety protocols, emergency preparedness, plans or schematics, emergency preparedness, operational details, and other material that cannot be shared publicly without jeopardizing public safety.” The MBTA contends that “[c]harging a fee in this matter is necessary because Mr. Ofsevit’s request cannot be prudently completed without redacting information under Exemptions (d) and (n). The fee is reasonable as it relates to specific redactions, and the fee is not designed to limit, deter or prevent access to public records. Rather, it is meant to protect the MBTA from revealing confidential policy development and security-sensitive material. Releasing the requested records without any necessary redaction would impede the MBTA’s security initiatives, as well as jeopardize the safety and security of its employees and the Commonwealth’s residents and visitors.” 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: Ari Ofsevit