Jason Solowski v. Department of Public Utilities (SPR 20221851)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2022 SPR22/1851 Patrick M. Houghton, Esq. Records Access Officer Department of Public Utilities Legal Division One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: On August 10, 2022, this office received your petition on behalf of the Department of Public Utilities (Department) requesting an extension of time to produce records and permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated July 27, 2022, Jason Solowski, of NBC 10, requested “…copies of all accident and derailment investigations involving the MBTA from January 1, 2022, through July 27, 2022. The request also seeks copies of all corrective action plans developed from January 1, 2022, through July 27, 2022.” Petitions for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or 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

Patrick M. Houghton, Esq. SPR22/1851 Page 2 August 12, 2022 municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Extension of Time to Produce Responsive Records In its August 10th petition, the Department “…respectfully requests that the Supervisor grant its petition for an extension of 20 business days to provide the responsive records to the requester.” The Department states it “…conducted a preliminary search and collected approximately 800 items. According to this preliminary assessment, which is not inclusive of all the records requested by the requester, the Department has determined that it will require an extensive amount of time to complete the request. Because the focus of the request concerns a matter that is still under investigation by the Department, the responsive records include a high volume of material requiring multiple redactions.” I find in light of the need to collect and segregate the request, as well as the capacity of the Department to produce the request without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(ii). The Department is granted an extension of 20 business days. 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.

Patrick M. Houghton, Esq. SPR22/1851 Page 3 August 12, 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 August 10th petition, the Department indicates that the requested records “…include investigatory materials, critical energy infrastructure information in the form of internal layouts, structural elements, and blueprints for the Commonwealth’s transportation system…All information falling within these categories is exempt from disclosure pursuant to G.L. c. 4, §7, cl. 26(f) and (n). Furthermore, certain of the requested email communications are protected by attorney-client privilege because they are confidential communications between legal counsel and the client (i.e., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law.” The Department contends that it “…has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requester. Segregation and redaction of records often involves the application of multiple exemptions to the public records law to a single document, which may include several attachments.”

Patrick M. Houghton, Esq. SPR22/1851 Page 4 August 12, 2022 With respect to fees, the Department estimates “…conservatively and in good faith based on past experience, that [they] will expend an average of three minutes to review each item and to perform any necessary redactions of the records. Accordingly, the good faith estimate of $900 is derived as follows: 2,400 minutes, or 40 hours, for reviewing and redacting the records, minus the first four hours, equals 36 hours at a rate of $25/hour, which represents the lowest hourly rate of a person capable of compiling, segregating, and redacting these records.” I find the Department 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 Department is permitted to charge for time spent segregating and redacting the requested records. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material. With respect to time, I find the Department has established good cause to permit an extension of 20 business day. G. L. c. 66, § 10(c)(i)-(ii). This office encourages the parties to communicate further to enable the Department 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: Jason Solowski