Sarah L. Ryley v. Massachusetts Bay Transportation Authority (SPR 20221663)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 26, 2022 SPR22/1663 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: On July 19, 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 5, 2022, Sarah L. Ryley of the Boston Globe requested “…the meeting minutes and reports produced in conjunction with the following requirements in the CNR MA (CRRC) contract for the Red and Orange Line trains, as outlined on page 10 of the Staff Summary for Red and Orange Line Procurement, released Oct. 22, 2014.” 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 purpose. 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. SPR22/1663 Page 2 July 26, 2022 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 19th petition, the MBTA states the following: The MBTA is working with Ms. Ryley to ensure that it can provide her with an efficient and affordable response. However, an initial reading of her request indicates that responsive records may contain safety/security-sensitive information about MBTA infrastructure, and/or policy development information. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(d) and (n). Certain 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 by the agency.” This is especially the case for records created closer in time to the date of the request. Specifically the request asks for records

Julie A. Ciollo, Esq. SPR22/1663 Page 3 July 26, 2022 that may include policy positions currently being developed by the MBTA. In this case, redactions must be applied to these records prior to production. 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 infrastructure, safety protocols, or other safety or security-sensitive details that are not suitable for public dissemination. The MBTA contends that “…the 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.” Conclusion Based on the MBTA’s petition, 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). To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for the segregation and redaction of such exempt material. Further, this office encourages Ms. Ryley and the MBTA to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). When preparing a fee estimate for the provision of the requested records, the MBTA is advised to provide a detailed explanation to the requestor indicating why this estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The MBTA is to provide a response to Ms. Ryley within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Ms. Ryley may appeal the MBTA’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). 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 L. Ryley