Peter Brown v. Massachusetts Bay Transportation Authority (SPR 20230369)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 1, 2023 SPR23/0369 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On February 23, 2023, 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, the MBTA furnished a copy of this petition to the requestor. Id. On February 9, 2023, Peter A. Brown, Esq., of Brown Legal PLLC, requested: [1] Photographs, emails and email attachments responsive to this search: All MBTA accounts 1/1/17 - 10/21/19 Key words: “pedestrian incursion” OR “pedestrian railroad grade crossing incursion” OR “the top 20 problematic stations” OR “low cost generic”[;] [2] Contract or contracts as between [an identified individual] and the MBTA[;] [3] Audits, reviews or reports by MBTA of the work performed by [an identified individual] on its behalf[;] [4] Spreadsheet or document containing a partial or full list of the 121 cutout style station crossings existing in Massachusetts as referred to in correspondence of June 1 and June 12, 2020 as between the FRA and MBTA[;] [5] Photographs, emails and email attachments responsive to this search: Emails to/from, including or referencing [an identified individual]1/1/19 - Present Key words: “safety” and “Crossing” and “station”[;] [6] Any MBTA Organization chart including [an identified individual] or the role of a risk management consultant[;] [7] Document or documents stating the role and responsibilities of [an identified individual] and/or Risk Management Consultants within the MBTA[.] I note that in an email to this office and the MBTA on February 26, 2023, Attorney Brown opposed the MBTA’s petition, arguing, “[b]ecause: (1) the MBTA does not identify an 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. SPR23/0369 Page 2 March 1, 2023 hourly rate or the anticipated amount of time to segregate and/or redact; and (2) the exemptions relied upon by the MBTA are unlikely to be applicable, I respectfully request that the Division of Public Records deny the MBTA’s Petition.” 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). 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

Julie A. Ciollo, Esq. SPR23/0369 Page 3 March 1, 2023 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 February 23, 2023, the MBTA states: An initial reading of Mr. Brown’s 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)....Numerous requests focus on the work and communications of a risk management professional with the MBTA. It is highly probable that many responsive records will contain information concerning ongoing policy development. This information would likely not constitute factual studies or reports but is rather recommendations on legal and policy matters found within the ongoing deliberative process within the MBTA. The MBTA believes that responsive records may require redaction of security- sensitive information pursuant to [Exemption (n)]…. Again, given that numerous requests focus on the work and communications of a risk management professional with the MBTA, this exemption is likely to factor into numerous responsive records. Specifically, the requester is seeking communications to or from this individual concerning “safety.” It is highly probable that many communications will contain information that cannot be provided without jeopardizing public safety. 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. When preparing a fee estimate for the provision of the requested records, the MBTA is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv)

Julie A. Ciollo, Esq. SPR23/0369 Page 4 March 1, 2023 (requiring the amount of the fee must be reasonable). The MBTA must provide a response to Attorney Brown within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Attorney Brown may appeal the MBTA’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Peter A. Brown, Esq. Stephen Shorey, Esq.