Christian MilNeil v. Massachusetts Department of Transportation (SPR 20232210)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2023 SPR23/2210 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 September 15, 2023, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA/Authority) seeking a waiver of statutory limits to fees that may be assessed in responding to the requests. 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, the Authority furnished a copy of the petition to the requestor, Christian MilNeil. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In separate requests, on August 29, 2023, Mr. MilNeil requested the following records: [1] Emails, text messages, chat messages, and other written correspondence related to the MBTA’s 2022 Capital Needs Assessment, namely, messages that include the specific phrases “Capital Needs Assessment” or “CNA”, that were sent or received from the dates June 16 to June 30, 2023[;] [2] Emails, text messages, chat messages, and other written correspondence related to the MBTA’s 2022 Capital Needs Assessment, namely, messages that include the specific phrases “Capital Needs Assessment” or “CNA”, that were sent or received from the dates May 15 to May 31, 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). 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. SPR23/2210 Page 2 September 21, 2023 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). Conclusion The Authority submitted their petition on September 15, 2023, more than ten business days after receipt of the request. In light of the fact the Authority has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting

Julie A. Ciollo, Esq. SPR23/2210 Page 3 September 21, 2023 responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Christopher Smith, Esq. Stephen W. Shorey, Esq. Christian MilNeil