Sarah L. Ryley v. Massachusetts Bay Transportation Authority (SPR 20221655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2022 SPR22/1655 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite #7760 Boston, MA 02116 Dear Attorney Ciollo: On July 18, 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. G. L. c. 66, § 10(d)(iv). In a letter dated July 1, 2022, Sarah Ryley of the Boston Globe requested “…the work orders and database documentation pertaining to the following databases currently in use by the MBTA: Incident Reporting Information System (IRIS), Maintenance Control and Reporting System (MCRS or MCRS2), and the Hazard Tracking System (HTS).” 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). 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 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 Ciollo, Esq. SPR22/1655 Page 2 July 25, 2022 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 July 18th petition, the MBTA states the following: The MBTA is currently communicating with Ms. Ryley to clarify certain parts of her request so that it can determine if responsive records exist. However, due to the applications/software programs referenced in her request and categories of potential responsive records, the MBTA expects that numerous responsive records may contain personal and/or medical information about named individuals or safety/security-sensitive information about MBTA infrastructure… Under exemption (c), redaction is allowed for records likely to contain “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” See Worcester Telegram & Gazette

Julie Ciollo, Esq. SPR22/1655 Page 3 July 25, 2022 Corp., 436 Mass. 378, 386 (2002). Therefore, redaction would be appropriate under Exemption (c)… The MBTA believes that responsive records may require redaction of security- sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(n). This is especially the case where responsive records may include sensitive details about MBTA cybersecurity, information security, infrastructure, safety protocols, or other safety or security-sensitive details that are not suitable for public dissemination. The MBTA contends that “[t]he types of information described above cannot be shared publicly without jeopardizing public safety. The MBTA estimates it will take 1 minute to perform the necessary redaction on each page of non-exempt, responsive records. Based on the above, the MBTA should be allowed to charge for this work. Charging a fee in this matter is necessary because Ms. Ryley’s request cannot be prudently completed without redacting information under these applicable exemptions.” 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. I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. 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, Manza Arthur Supervisor of Records cc: Sarah Ryley