Christian MilNeil v. Massachusetts Bay Transportation Authority (SPR 20232553)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2023 SPR23/2553 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On October 25, 2023, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA/Authority) to assess fees for time spent segregating and 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, it is my understanding that 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). On October 11, 2023, Mr. MilNeil requested the following records that were sent or received on the following dates, Wednesday, October 4, 2023, Thursday, October 5, 2023 and Friday, October 6, 2023: Any and all official MBTA email correspondence from the following employees: 1. ... Assistant General Manager for External Affairs MBTA 2. ... Sr. Director of Digital Engagement 3. ... Chief Communications Officer Meeting invitations, confirmations, and calendar appointments (e.g. from Outlook, Apple, or Google Calendars), including details on meeting attendees, for the dates of Wednesday, October 4 and Thursday, October 5, from the following MBTA employees: ... Assistant General Manager for External Affairs MBTA - ... Sr. Director of Digital Engagement - ... Chief Communications Officer Petition to assess fees – Agencies A fee shall not 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. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 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. SPR23/2553 Page 2 November 1, 2023 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

Julie A. Ciollo, Esq. SPR23/2553 Page 3 November 1, 2023 Current Petition In its petition, the Authority seeks to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In support of its request, the Authority provides the following information: An initial reading of Mr. MilNeil’s request indicates that responsive records will likely contain policy development information. [T]he MBTA employees specified in this request often send correspondence concerning non-public, ongoing policy development. This information does not constitute factual studies or reports but is rather recommendations on legal and policy matters found within the ongoing deliberative processes within the MBTA. … [T]here are over 1,000 email and calendar items, many of which have attachments that could be responsive to [the] requests. Given the personnel specified by [the] requests, [the MBTA] expect the items to contain policy deliberation information that is protected by Exemption (d) to the public records law. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(d). Mr. MilNeil, in an email dated October 25, 2023, objected to the MBTA’s October 25th fee petition stating “…[t]he above-mentioned request is being made in the public interest in order to inform the ongoing reporting by StreetsblogMASS on the MBTA’s management and transparency. There is no commercial interest associated with this request.” Based on the information provided in its fee petition, I find the Authority has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Authority has met its burden to explain how the response could not be prudently completed without segregation or redaction. To the extent the responsive records contain the exempt information as described above, the Authority may assess a fee for segregation and redaction. This office encourages Mr. MilNeil and the Authority to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 agency to produce records sought more efficiently and affordably.) When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount

Julie A. Ciollo, Esq. SPR23/2553 Page 4 November 1, 2023 of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Authority must provide a response to Mr. MilNeil within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Manza Arthur Supervisor of Records cc: Christian MilNeil Stephen W. Shorey, Esq.