Taylor Dolven v. Massachusetts Department of Transportation (SPR 20230187)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 7, 2023 SPR23/0187 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten 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(d)(iv). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On January 17, 2023, Taylor Dolven, of the Boston Globe, requested the following: [1] Contract correspondence between CRRC and MBTA related to deliveries and/or date of final acceptance[;] [2] Contract correspondence between CRRC and MBTA related to subcontractor issues[;] [3] Contract correspondence between CRRC and MBTA related to open technical items[;] [4] Original contract for WSP on the CRRC project[;] [5] Current contract for WSP on the CRRC project[;] [6] Original contract for Jacobs on the CRRC project[;] [7] Current contract for Jacobs on the CRRC project[;] [8] Original contract for STV on the CRRC project[;] [9] Current contract for STV on the CRRC project[;] [10] Change orders to WSP, Jacobs, and STV contracts on CRRC project[.] Petitions 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). 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. SPR23/0187 Page 2 February 7, 2023 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 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 petition dated January 31, 2023, the MBTA provides the following information: An initial reading of Ms. Dolven’s request indicates that responsive records will likely contain safety/security-sensitive information about MBTA infrastructure,

Julie A. Ciollo, Esq. SPR23/0187 Page 3 February 7, 2023 and/or policy development information. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(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.” The MBTA’s engagement with CRRC for the production and delivery of new Orange and Red Line cars is ongoing, and many responsive records will contain information concerning nonpublic, ongoing policy development. This information does not constitute factual studies or reports but is rather recommendations on legal and policy matters found within the ongoing deliberative process concerning CRRC’s work for the MBTA. The MBTA believes that responsive records may require redaction of security- sensitive information pursuant to [Exemption (n)]. . . .Specifically, responsive records in this matter may contain information about safety aspects of MBTA infrastructure, safety protocols, plans or schematics, and other material that cannot be shared publicly without jeopardizing public safety. Based on the information provided in its 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 charge for the segregation and redaction of such exempt material. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the MBTA is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner Please note, Ms. Dolven 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: Taylor Dolven