Mike Boudo v. Massachusetts Bay Transportation Authority (SPR 20231839)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 16, 2023 SPR23/1839 Julie Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite # 7760 Boston, MA 02116 Dear Attorney Ciollo: On August 9, 2023, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) requesting permission to charge for time spent segregating and redacting responsive records under G. L. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the MBTA furnished a copy of this petition to the requestor. G. L. 66, § 10(d)(iv). On July 27, 2023, Michael Boudo, of WHDH, requested “all MBTA Transit Police Reports for the past 10 years regarding people 19 and younger being struck and injured by MBTA trains and Amtrak trains, AND people 19 and younger being struck and killed by MBTA trains and Amtrak. Please include [a]ll MBTA Police Reports in their entirety.” 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). 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. SPR23/1839 Page 2 August 16, 2023 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 August 9th petition, the MBTA states the following: The MBTA expects that responsive records will 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). Under exemption (c), redaction is allowed for records likely to contain personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. Therefore, redaction would be appropriate under Exemption (c). Responsive records will contain information about named individuals, such as

Julie Ciollo, Esq. SPR23/1839 Page 3 August 16, 2023 juvenile information, license numbers, social security numbers, home addresses, home phone numbers, medical condition information, and other personal 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. The MBTA estimates it will take 15 minutes to perform the necessary redaction on each responsive report. Based on the above, the MBTA should be allowed to charge for this work. Charging a fee in this matter is necessary because the request cannot be prudently completed without redacting information under these applicable exemptions. 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. This office encourages Mr. Boudo and the MBTA to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (a municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the municipality to produce records sought more efficiently and affordably). Conclusion 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. Please note, Mr. Boudo 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); G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Michael Boudo