Christian MilNeil v. Massachusetts Department of Transportation (SPR 20231815)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 11, 2023 SPR23/1815 Christopher Smith, Esq. Massachusetts Bay Transportation Authority Office of the General Counsel 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Smith: On August 4, 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 27, 2023, Christian MilNeil requested “[e]mails, text messages, chat messages, and other written correspondence related to the MBTA’s 2022 Capital Needs Assessment.” In an email to this office and the MBTA on August 4, 2023, Mr. MilNeil opposed the MBTA’s petition. 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 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 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

Christopher Smith, Esq. SPR23/1815 Page 2 August 11, 2023 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 August 4th petition, the MBTA seeks permission “to waive statutory limits on charging fees pursuant to 950 CMR 32.06(4)(g).” The MBTA provides the following information in support of its request to charge for segregation and redaction: Based on the current wording of the request there are thousands of records that will need to be reviewed to determine responsiveness to the request and mandatory withholding. There are also likely applicable exemptions pursuant to the Public Records Law that will necessitate a withholding in whole, or in part, of certain records before they can be released. Due to the substance of the request, we believe that certain responsive records will require redaction of records. . . The MBTA further explains that it “will need to review each responsive record for information exempt from disclosure … including, without limitation” to Exemptions (d) and (n)

Christopher Smith, Esq. SPR23/1815 Page 3 August 11, 2023 of the Public Records Law: [Exemption (d):] Some communications responsive to the request may include discussions of the development of the capital needs assessment and potential prioritization of capital improvement projects. [Exemption (n):] In this case, any discussion of capital needs is necessarily a discussion of the MBTA’s infrastructure. Considering the focus by the MBTA and the Federal Transit Administration on increasing safety through capital investment, discussions of infrastructure and capital needs would likely pose a risk to public safety if certain information was made public and made it into the hands of a bad actor. 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. This office encourages Mr. MilNeil and the MBTA to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any subsequent fee estimate from the MBTA must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Mr. MilNeil 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: Christian MilNeil Julie Ciollo, Esq. Stephen Shorey, Esq.