Taylor Dolven v. Massachusetts Bay Transportation Authority (SPR 20230566)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 30, 2023 SPR23/0566 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On March 24, 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, it is my understanding that the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On March 13, and March 15, 2023, Taylor Dolven, of the Boston Globe, requested: [1] Emails to or from [named individuals] containing the keywords “speed restriction,” “geo scan,” “track condition,” or “documentation,” from March 3, 2023 to the date this request is fulfilled. [2] Emails to or from [named individuals] containing the keywords “spring rating,” “bus service cuts,” or “dropped trips,” from Dec. 1, 2022 to the date this request is fulfilled. [3] All emails to or from [named individuals] from March 3, 2023 to the date this request is fulfilled. 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). 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 Ciollo, Esq. SPR23/0566 Page 2 March 30, 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 March 24th petition, the MBTA argues the following in support of its request to charge for segregation and redaction under Exemption (c): The MBTA employees identified in the requests are high-level employees or

Julie Ciollo, Esq. SPR23/0566 Page 3 March 30, 2023 department heads, and often receive sensitive employee information, such as disciplinary or medical information, via email. Information contained in the responsive records, if made public, would result in personal embarrassment to the named individuals, contains highly personal details, and is not otherwise available from other sources. There is no prevailing public interest requiring disclosure. Additionally, the MBTA argues the following in support of its request to charge for segregation and redaction under Exemptions (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. . .” Given the subjects contemplated by the requests, the MBTA employees identified in the are likely to be engaged in ongoing discussions, over email, about policy positions being developed by the MBTA. Many responsive records will contain information concerning non-public, ongoing policy development. This information does not constitute factual studies or reports but is rather recommendations policy matters found within various ongoing deliberative processes within the MBTA. The MBTA believes that responsive records may require redaction of security- sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(n). ... Specifically, responsive records in this matter may contain information about safety aspects of MBTA infrastructure, information security, technology, plans or schematics, and other material that cannot be shared publicly 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, 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. See G. L. c. 66, § 10(b)(vii). 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).

Julie Ciollo, Esq. SPR23/0566 Page 4 March 30, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Taylor Dolven