Laura Crimaldi v. Massachusetts Bay Transportation Authority (SPR 20231639)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2023 SPR23/1639 Julie A. Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: On July 17, 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 July 11, 2023, Laura Crimaldi, of The Boston Globe, requested: 1. Any/all monthly project schedule update submittals and reports received by the MBTA from Boston AFC 2.0 OPCO LLC (see p. 53 of Amended and Restated Project Agreement) from June 15, 2020 to present; 2. Any/all “monthly performance reports” received by the MBTA from Boston AFC 2.0 OPCO LLC (see p. 92 of Amended and Restated Project Agreement) from June 15, 2020 to present; 3. Any/all notices from the MBTA to proceed with Pilot Phase 1, Pilot Phase 2, and Pilot Phase 3 and any/all written notice to Boston AFC 2.0 OPCO LLC of successful completion of any/all of those pilot phases from June 15, 2020 to present; 4. Any/all MBTA requests for payment from Boston AFC 2.0 OPCO LLC of reasonable cost and expenses and proof of payments from June 15, 2020 to present; 5. Any/all proof of milestone invoices, payments and proof of monthly invoice payments made to Boston AFC 2.0 OPCO LLC from June 15, 2020 to present; 6. Any/all demand bonds and associated records issued as part of the MBTA’s fare transformation project from Jan. 1, 2017 to 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 A. Ciollo, Esq. SPR23/1639 Page 2 July 24, 2023 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. 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).

Julie A. Ciollo, Esq. SPR23/1639 Page 3 July 24, 2023 Current Petition In its July 17th petition, the MBTA seeks permission “to waive statutory limits on charging fees pursuant to 950 CMR 32.06(4)(g).” The MBTA explains that “[a]n initial reading of Ms. Crimaldi’s request indicates that responsive records will likely contain policy development information” and further argues the following in support of its request to charge for segregation and redaction under Exemption (d) of the Public Records Law: Certain parts of the request call for records likely to contain material that will require redaction under Exemption (d). . . . The MBTA has engaged with Cubic, or Boston AFC 2.0 OpCo, for a new automated fare collection system. 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 on legal and policy matters found within the ongoing deliberative process concerning Cubic’s work for the MBTA. 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, Ms. Crimaldi 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: Laura Crimaldi