Beth Healy v. Department of Public Utilities (SPR 20222132)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 22, 2022 SPR22/2132 Patrick M. Houghton, Esq. Records Access Officer Department of Public Utilities One South Station, 5th Floor Boston, MA 02110 Dear Attorney Houghton: I have received your petition on behalf of the Department of Public Utilities (Department) seeking 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, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On September 1, 2022, Beth Healy, of WBUR, requested “MBTA safety audits by the DPU in the past five years, including ‘random inspections of MBTA light and heavy rail subway cars and operation facilities which include all carhouses,’ as stated on DPU website.” 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 municipality; and (vi) the public interest served by expeditious disclosure. 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. SPR22/2132 Page 2 September 22, 2022 G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. 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). Request for Additional Time to Produce Responsive Records In its September 16, 2022 petition, the Department “requests that the Supervisor grant its petition for an extension of 20 business days to provide the responsive records to the requester.” In support of its request, the Department states the following: The Department conducted a preliminary search and expects to collect approximately 4,800 responsive 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. I find that in light of the capacity of the Department to produce the request without the extension, and efforts undertaken by the Department in fulfilling the current request, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)- (iv). The Department is granted an extension of 20 business days. 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.

Patrick M. Houghton, Esq. SPR22/2132 Page 3 September 22, 2022 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 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 Department indicates that it seeks to charge for time spent segregating or redacting responsive records. The Department provides the following explanation in support of its petition: Because the focus of the request concerns matters that are still under investigation by the Department, the responsive documents include a high volume of material requiring multiple redactions including 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), respectively. Accordingly, the information must be segregated and

Patrick M. Houghton, Esq. SPR22/2132 Page 4 September 22, 2022 redacted to secure the safety of persons and public places before the records are produced to the requester. In an email to this office and the Department on September 20, 2022, Ms. Healy expresses her opposition to the current fee petition. Specifically, she argues “that these records are of great public interest, given the high-profile nature of the MBTA’s safety issues and DPU’s responsibility over the transit system’s safety.” She goes on to argue that “federal authorities in their recent report on the T noted the need for the DPU to step up its oversight role. The public should be able to know the extent to which DPU has been fulfilling its oversight duties.” Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). In her September 20th email, Ms. Healy offers to narrow the scope of records she seeks to a single year. This office encourages Ms. Healy and the Department to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any change to the request would require a new fee estimate in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. Further, while permission to charge for time spent segregating or redacting responsive records cannot be granted for the Exemptions discussed above, this does not preclude the Department from charging for segregation and redaction that is required by law under Exemption (a). Please note, Ms. Healy 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: Beth Healy