Massachusetts Free Press v. Massachusetts Bay Transportation Authority (SPR 20231712)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2023 SPR23/1712 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 25, 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 June 26, 2023, Massachusetts Free Press, requested “[a]ll records” that contain any fourteen (14) identified keywords. In subsequent correspondence with the MBTA dated June 26, 2023, Massachusetts Free Press narrowed its request to “[a]ll records” from 2020 and 2023 that contain any fourteen (14) identified keywords. Based on further correspondence with the MBTA, on July 18, 2023, Massachusetts Free Press again narrowed its request to emails from 2021 and 2022 that contain any fourteen (14) identified keywords. Petition to Assess Fees – Agencies 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 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. SPR23/1712 Page 2 July 31, 2023 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 – 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 July 25th petition, the MBTA seeks permission “to waive statutory limits on charging fees pursuant to 950 CMR 32.06(4)(g).” In support of its request, the MBTA explains that “the request cannot be prudently completed without redacting information under” Exemption (c) of the Public Records Law: After a spot check was performed on the responsive records, the MBTA expects that several responsive records may contain personal and/or medical information about named individuals. Therefore, the MBTA must expend time redacting this

Julie A. Ciollo, Esq. SPR23/1712 Page 3 July 31, 2023 information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c). . . . Responsive records will contain information about named individuals, such as medical details, employment applications, and customer data which, if made public, would result in personal embarrassment to the named individuals. These are highly personal details that are not otherwise available from other sources. There is no prevailing public interest requiring disclosure. In addition, information such as ID numbers, addresses, email addresses and phone numbers would allow for identification of customers who use the RIDE, the MBTA’s paratransit service. Revealing the identities of this population, may result in personal embarrassment to the named individuals. These are highly personal details that are not otherwise available from other sources. 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, Massachusetts Free Press 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: Massachusetts Free Press