Laura Crimaldi v. Massachusetts Bay Transportation Authority (SPR 20231959)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 29, 2023 SPR23/1959 Julie Ciollo, Esq. Records Access Officer Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Ciollo: On August 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(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the MBTA furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 9, 2023, Laura Crimaldi, of the Boston Globe, requested the following: [1.] data, preferably in .CSV format, of MBTA hires in Fiscal Year 2023 that didn’t start with the authority. There were 173 such separations, according to a presentation delivered on July 13, 2023 to the MBTA Board of Directors Planning, Workforce, Development & Compensation Subcommittee. I am requesting all fields in the data containing non-exempt information, including but not limited to [a list of eleven categories.] Please include any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. . . . [2.] data, preferably in .CSV format, of MBTA voluntary separations in Fiscal Year 2023. There were 271 such separations, according to a presentation delivered on July 13, 2023 to the MBTA Board of Directors Planning, Workforce, Development & Compensation Subcommittee. I am requesting all fields in the data containing non-exempt information, including but not limited to [a list of eleven categories.] 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. SPR23/1959 Page 2 August 29, 2023 Please include any data dictionaries, employee or licensee handbooks, code tables, or other records that would define and explain any terms, codes, or acronyms used in the records and data. . . . [3.] copies of employee written comments submitted in fiscal year 2023 to the MBTA by people voluntarily separating from the authority as part of the exit interview process. Please include portions of the records containing non-exempt information, including employee name, position, department, and the date the record was submitted to the MBTA. 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 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).

Julie Ciollo, Esq. SPR23/1959 Page 3 August 29, 2023 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, the MBTA seeks to charge fees for segregation and redaction of the responsive records, and argues the following in support of its request: 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 personnel information about named individuals, such as candid impressions of their positions, supervisors, co-workers, and the MBTA. Exit interviews often include details such as use of medical leave or employee medical resources, and personal reasons for leaving employment with the MBTA. These are highly personal details, provided in confidence, that are not otherwise available from other sources. There is no prevailing public interest requiring disclosure. 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, to the extent the responsive records contain the exempt information described above, the MBTA may assess a fee for segregation and redaction.

Julie Ciollo, Esq. SPR23/1959 Page 4 August 29, 2023 This office encourages Ms. Crimaldi and the MBTA 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, 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