Dylan Rossiter v. Massachusetts Department of Transportation (SPR 20222033)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/2033 Stephen Shorey, Esq. Senior Counsel MassDOT/MBTA Office of the General Counsel 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Shorey: On September 2, 2022, this office received your petition on behalf of the Massachusetts Department of Transportation (MassDOT) seeking an extension of time to produce records. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. In a letter dated August 19, 2022, Dylan Rossiter requested “[a]ny and all internal communication regarding the Commuter Rail alternative for the orange line shut down, specifically in reference to fares and/or Charlie Card use.” 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

Stephen Shorey, Esq. SPR22/2033 Page 2 September 13, 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 September 2nd petition, MassDOT states, “[t]here are likely to be a large number of responsive emails, in addition to their attachments, 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 may necessitate a withholding in whole, or in part, before they can be released.” MassDOT notes, “[b]ased on our experience we will need to review each responsive record for information exempt from disclosure under the Public Records Law, including the following: • deliberative discussions under Section 7(26)(d); • discussions that are privileged as attorney/client communications.” MassDOT contends that “[r]edaction is allowed for information, under Massachusetts General Laws Chapter 4, Section 7(26)(d), relating to policy positions being developed by the

Stephen Shorey, Esq. SPR22/2033 Page 3 September 13, 2022 MBTA; this exemption is intended to avoid the premature release of materials that could taint an ongoing deliberative process…The records may also include emails that contain material privileged as attorney/client communications pursuant to Suffolk Construction Company v. Division of Capital Asset Management, 449 Mass. 444, 449-50 (2007). These records would contain communications to or from our attorneys and our clients during the course of their search for legal advice or opinion that were made in confidence, provided the privilege has not been waived. Therefore, the MBTA seeks the Supervisor’s permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” MassDOT posits 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. Given the nature of the records, charging a fee in this matter is necessary because this request cannot be prudently completed without redacting information under these applicable exemptions.” I find that MassDOT 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 MassDOT 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, MassDOT may assess a fee for segregation and redaction. 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: Dylan Rossiter