Peter Brown v. Massachusetts Bay Transportation Authority (SPR 20231082)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 25, 2023 SPR23/1082 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority Ten Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On May 22, 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 May 8, 2023, Peter A. Brown, Esq., of Brown Legal PLLC, requested: 1. 2022 CRCRC Year-end Report 2. January 2023 CRCRC Monthly Report 3. February 2023 CRCRC Monthly Report 4. March 2023 CRCRC Monthly Report 5. April 2023 CRCRC Monthly Report 6. Keolis Safety Performance Report for the following months: [a.] 2018 - All 12 months [b.] 2019 - All 12 months (excepting October 2019) [c.] 2020 - All 12 months [d.] 2021 - All 12 months [e.] 2022 - All 12 months [f.] 2023 - January, February, March and April. 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 A. Ciollo, Esq. SPR23/1082 Page 2 May 25, 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). 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 May 22, 2023, the MBTA seeks “permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its petition, the MBTA provides the following information:

Julie A. Ciollo, Esq. SPR23/1082 Page 3 May 25, 2023 Today, the MBTA provided an initial response to Mr. Brown, in which it provided copies of all requested and existing CRCRC reports[.] As to Mr. Brown’s request for Keolis Safety Performance reports, the MBTA must expend considerable search, compilation and redaction time and has provided Mr. Brown with a fee estimate concerning those records. Responsive records will require redaction of records containing security-sensitive information pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(n). … Specifically, responsive records in this matter may contain information about commuter rail trains and track infrastructure, safety and vulnerability assessments, and related details that, in the hands of a bad actor, could be used to negatively impact transportation 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. 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Peter A. Brown, Esq.