Frank L. Bigelis v. Massachusetts Bay Transportation Authority (SPR 20240108)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0108 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On January 11, 2024, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) seeking an extension of time to produce records and permission 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 MBTA furnished a copy of the petition to the requestors, Attorney Frank L. Bigelis & Attorney Joel Lewin, of Hinckley Allen & Snyder, LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 27, 2023, Attorney Bigelis and Attorney Lewin requested “…all documents related to the “narrow gauge” issue on the Green Line Extension Project:” [1] Inspection reports, related documents and correspondence from prior to commencing revenue service on both branches[;] [2] Any and all geometry car reports and documentation (loaded and unloaded) for both branches from prior to revenue service until current…[;] [3] Any and all inspections, calibrations, certification of the geometry cars, amber carts or other measurement systems used to generate the reports related to track geometry[;] [4] Any and all certifications, licenses or other professional credentials of the individuals who generated any reports, calibrated any equipment (including the geometry cars and/or the amber cart), operated any equipment, or interpreted the data from same[;] [5] Any and all documents related to the punch-lists on the Green Line Extension Project at the prior to and at the time of commencing revenue service[;] 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. SPR24/0108 Page 2 January 19, 2024 [6] Any and all documents related to the MBTA’s decision to put both lines into revenue service[;] [7] Any and all documents provided to the Boston Globe pursuant to its 2023 public records request regarding the Green Line Extension[.] Current Petition In its petition, the MBTA respectfully requests “the maximum amount of time allowable under the statute due to the voluminous number of records that have been requested.” In support of its request, the MBTA provides the following information: [H]inckley Allen’s request is expansive…[D]ue to the volume of documents that must be collected and reviewed, it will take the MBTA quite some time to provide Hinckley Allen with a responsive request. As Hinckley Allen’s request is vague, calling for all documents related to the narrow gauge issue, without any specific time frame, it is difficult for the MBTA to ascertain the amount of time it will take to assemble these records. … The MBTA’s best estimate of the required time to locate relevant document would be over one hundred hours, as the MBTA would estimate that there are thousands of documents related to the narrow gauge issue on the Green Line Extension Project. As such, MBTA will be unable to complete the request within the time provided in G. L. c. 66, § 10(b)(vi), because of the “magnitude or difficulty of [the] request.” In light of the need to collect, segregate and examine the records, as well as the capacity of the Authority to produce the records without an extension, the MBTA has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iv). The MBTA is granted an extension of 20 business days. 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. 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).

Julie A. Ciollo, Esq. SPR24/0108 Page 3 January 19, 2024 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). Current Petition In its petition, the MBTA 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 MBTA provides the following information: [A]n initial reading of Hinckley Allen’s request indicates that responsive records will likely contain security and/or safety-sensitive information. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(n).

Julie A. Ciollo, Esq. SPR24/0108 Page 4 January 19, 2024 … [T]he request calls for records that will require redaction under Exemption (n) to the Public Records Law…specifically, responsive records in this matter may contain information about track infrastructure, safety and vulnerability assessments, and related details that, in the hands of a bad actor, could be used to negatively impact transportation safety. Based on the information provided in its fee 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 segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, I find that the MBTA has established good cause for a time extension of 20 business days. Accordingly, I find the MBTA has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. In an email to the Authority and this office on January 18, 2024, Attorney Bigelis states “[t]he parties are attempting to resolve the issues related to the public records request without the need for the petition, and have met and conferred. [B]y copy hereto, Mr. Sherman with Prince Lobel (representing the MBTA) has agreed to allowing an additional two (2) business days before the RAO issues a determination.” When preparing a fee estimate for the provision of the requested records, the MBTA is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The MBTA must provide a response to Attorney Bigelis and Attorney Lewin within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Attorney Bigelis and Attorney Lewin 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).

Julie A. Ciollo, Esq. SPR24/0108 Page 5 January 19, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Sarah Doelger, Esq., Prince Lobel Tye, LLP. Frank L. Bigelis, Esq., Hinckley Allen & Snyder, LLP. Joel Lewin, Esq., Hinckley Allen & Snyder, LLP.