Mike Beaudet v. Massachusetts Bay Transportation Authority (SPR 20221996)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 7, 2022 SPR22/1996 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite # 7760 Boston, MA 02116 Dear Attorney Ciollo: On August 29, 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). On August 15, 2022, Mike Beaudet requested “[a]ll emails to and from the MBTA and the Federal Transit Administration between 7/21/22 and 8/15/22.” 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. The second prong of the test is whether the fee represents an actual and good faith 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. SPR22/1996 Page 2 September 7, 2022 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 29, 2022 petition, the MBTA states the following: [A]n initial reading of his request indicates that responsive records will likely 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 [Exemptions (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.” Given the FTA’s ongoing scrutiny of safety- related processes and practices at the FTA, correspondence with the FTA is likely to include policy positions currently being developed by the MBTA. In this case,

Julie A. Ciollo, Esq. SPR22/1996 Page 3 September 7, 2022 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 [Exemption (n)]. This is especially the case where correspondence with the FTA historically include sensitive details about MBTA infrastructure, safety protocols, or other safety or security-sensitive details that are not suitable for public dissemination. The Massachusetts Public Records Law allows redaction under Exemption (n) which 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.” 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. 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, I find the MBTA has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for segregation and redaction. Further, 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: Mike Beaudet