Mike Beaudet v. Massachusetts Bay Transportation Authority (SPR 20222014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 12, 2022 SPR22/2014 Stephen Shorey, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 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(c); G. L. c. 66, § 10(d)(iv). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On August 18, 2022, Mike Beaudet, of WCVB NewsCenter 5, requested “all emails to and from [a named individual] from 7/21/2022 - 8/5/2022.” Petition to Assess Fees – Agencies 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

Stephen Shorey, Esq. SPR22/2014 Page 2 September 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 – Agencies 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, the MBTA requests “permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its request, the MBTA provides the following information: There are likely to be a large number of responsive emails, in addition to their attachments and possible other communications, that are responsive to the request; there are both several applicable exemptions pursuant to the Public Records Law and records that contain an attorney-client privilege that will necessitate a withholding in whole, or in part, before they can be released. Due to the substance of the request, we believe that many, if not all, of the responsive records will require redaction. The MBTA goes on to state that it will need to redact the responsive records under Exemptions (d) and (n) of the Public Records Law, and pursuant to the attorney-client privilege.

Stephen Shorey, Esq. SPR22/2014 Page 3 September 12, 2022 Under Exemption (d), the MBTA states that it “may be withholding the records [Mr. Beaudet has] requested, in part, under this exemption if they pertain to negotiations and/or discussions which have not been completed.” Under Exemption (n), the MBTA states that “due to the nature of the subject’s role in the Safety Department, it is likely that responsive records contain sensitive information related to infrastructure.” Finally, under the attorney-client privilege, the MBTA asserts that “these records would contain communications to or from ... attorneys and ... clients during the course of their search for legal advice or opinion that were made in confidence, provided the privilege has not been waived.” The MBTA also argues 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 requestor.” In light of 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. Conclusion Accordingly, I find that, to the extent the responsive records contain the exempt information described above, the MBTA may assess a fee for segregation and redaction. Please note, Mr. Beaudet 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Mike Beaudet