Daniele Nudelman-McGonigle v. Massachusetts Bay Transportation Authority (SPR 20230780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 26, 2023 SPR23/0780 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 April 21, 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 April 6, 2023, Danielle Nudelman-McGonigle requested: [1] Any and all documents pertaining to an incident involving an MBTA bus striking a [named individual], in the area of Cambridge Street and Oak Street, Cambridge, MA, on Friday, January 27, 2023… [2] Any and all documents pertaining to any incidents, accidents, or collisions involving the MBTA, occurring in the area of Cambridge Street and Oak Street, Cambridge, MA, as are within the possession, custody, or control of the Massachusetts State Police… for the period of January 1, 2017 to the present. [3] Any and all contracts or agreements by and between the MBTA or MassDOT with any vendor for the period of January 1, 2017 to the present. [4] Any and all training materials provided to MBTA drivers or operators for the period of January 1, 2017 to the present. [5] Any and all route books, binders, or manuals available to MBTA drivers or operators at the garage that handles routes through the intersection of Cambridge Street and Oak Street in Cambridge, Massachusetts for the period of January 1, 2017 to the present. 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. SPR23/0780 Page 2 April 26, 2023 [6] Any and all complaints about or regarding the bus route that runs through the intersection of Cambridge Street and Oak Street, Cambridge, MA. 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). 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.

Julie Ciollo, Esq. SPR23/0780 Page 3 April 26, 2023 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 April 21st petition, the MBTA argues the following in support of its request to charge for segregation and redaction: With respect to requests 2 and 6, the MBTA expects that numerous responsive records may contain personal and/or medical information about named individuals. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c). … With respect to Requests #4 and 5, the MBTA expects that numerous responsive records may contain internal personnel rules and practices that cannot be made public to the negative impact release would have on the proper performance of necessary governmental functions. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(b). 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. 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. SPR23/0780 Page 4 April 26, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Danielle Nudelman-McGonigle