Sarah Carpenter v. Department of Public Utilities - Legal Division (SPR 20230405)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2023 SPR23/0405 Mathieu Cunha, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02110 Dear Attorney Cunha: On March 1, 2023, this office 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, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On February 16, 2023, Sarah Carpenter, Esq., of Smith, Currie & Hancock LLP, requested the following: All documents exchanged between MBTA and DPU pursuant to 220 CMR Section 151.09 regarding the Cabot Yard and/or Cabot Maintenance Facility for the time period of April 13, 2018 to December 31, 2022, including specifically: [1] All “Accident Notifications” made by MBTA to DPU pursuant to 220 CMR Section 151.09[;] [2] All “investigation checklist forms” completed pursuant to 220 CMR Section 151.09[;] [3] All investigative reports completed pursuant to 220 CMR Section 151.09[;] [4] All status reports completed pursuant to 220 CMR Section 151.09[;] [5] All final incident reports completed pursuant to 220 CMR Section 151.09[;] [6] All DPU disagreements with MBTA’s final incident reports completed pursuant to 220 CMR Section 151.09[;] [7] All MBTA dissents regarding final reports completed pursuant to 220 CMR Section 151.09[;] [8] All correspondence exchanged between DPU and MBTA regarding any incident requiring an Accident Notification pursuant to 220 CMR Section 151.09[;] 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

Mathieu Cunha, Esq. SPR23/0405 Page 2 March 8, 2023 [9] All photographs and videos exchanged between DPU and MBTA regarding any incident requiring an Accident Notification pursuant to 220 CMR Section 151.09. Additionally, the Department states, “[a]fter speaking to the requester, section 8 of the request was limited to pertain only to signed, official correspondence between the Department and the MBTA concerning Cabot Maintenance Facility.” 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. 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 March 1st petition, the Department seeks “an extension of 20 business days to provide the responsive records to the requester.” The Department states:

Mathieu Cunha, Esq. SPR23/0405 Page 3 March 8, 2023 The Department conducted a preliminary search and collected approximately 1545 items. According to this preliminary assessment, which is not inclusive of all the records requested, the Department has determined that it will require an extensive amount of time to complete the request. Because the focus of the request touches on nearly every communication made between the DPU and the MBTA concerning Cabot Maintenance Yards, extensive review will also be required…. Given that there are approximately 1545 items that the Department must review and redact, this will impose an onerous burden on the Department, which will have to devote limited resources to review and redact these records. I find that in light of the need to search for, collect, and examine the records, the capacity of the Department to produce the request without the extension, and the efforts undertaken by the Department in fulfilling the current request, the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Attorney Carpenter’s request. See G. L. c. 66, § 10(c). 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). 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).

Mathieu Cunha, Esq. SPR23/0405 Page 4 March 8, 2023 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 March 1st petition, the Department states: Some of the correspondence involving attorneys in the Department’s rail division are privileged work product, confidential communications between legal counsel and the client (i.e., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law. Accordingly, the information must be segregated and redacted to secure the safety of persons and public places before the records are produced to the requester. Safety and accident reports can include personal information, including intimate personnel or medical information relating to injuries sustained during an accident. Due to its nature as critical infrastructure with the capacity for catastrophic failure, and because these accident reports by their very nature relate to such failures, some documents will require redactions in order to protect public safety. All information falling within these categories is exempt from disclosure pursuant to G.L. c. 4, § 7(a), (c), or (n). In light of the Department’s petition, I find the Department 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 Department may assess a fee 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 Department is permitted an extension of 20 business days to

Mathieu Cunha, Esq. SPR23/0405 Page 5 March 8, 2023 furnish copies of records responsive to Attorney Carpenter’s request. Further, the Department is permitted to charge for time spent segregating and/or redacting the requested records. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. 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: Sarah Carpenter, Esq.