Nathan S. Gibson v. Massachusetts Department of Transportation (SPR 20240259)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 2, 2024 SPR24/0259 Stephen W. Shorey, Esq. Senior Counsel, Public Records and Records Management MassDOT/MBTA Office of General Counsel 10 Park Plaza, Suite 3510 Boston, MA 02116 Dear Attorney Shorey: On January 26, 2024, this office received your petition on behalf of the Massachusetts Department of Transportation (Department) 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, it is my understanding that the Department furnished a copy of the petition to the requestor, Nathan S. Gibson. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 14, 2024, Mr. Gibson requested “emails to/from . . . of the date range from October 2, 2023 to January 12, 2024.” 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). 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. 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

Stephen W. Shorey, Esq. SPR24/0259 Page 2 February 2, 2024 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 Department seeks “permission to charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its request, the Department provides the following information: [T]here are a large number of responsive emails and possible attachments that are responsive to the request. Further, there are applicable exemptions pursuant to the Public Records Law that will necessitate a withholding in whole, or in part, before they can be released. Due to the substance of the request, we believe that many of the responsive records will require redaction. … [I]nformation whose disclosure may constitute an warranted invasion of personal privacy under G. L. c. 4, § 7(26)(c): Certain responsive emails contain contact information of private individuals, including address, phone number, and personal email addresses. MassDOT will need to review these records in order to prevent

Stephen W. Shorey, Esq. SPR24/0259 Page 3 February 2, 2024 unwarranted invasions of personal privacy under G. L. c. 4, § 7(26)(c). … [D]eliberative discussions under G. L. c. 4, § 7(26)(d): Relating to policy positions being developed by MassDOT; this exemption is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT may be withholding the records you have requested, in part, under this exemption if they pertain to negotiations and/or discussions which have not been completed. In an email to this Division on January 29, 2024, Mr. Gibson objects to the Department’s petition to assess fees, arguing that “MassDOT created a process for public comments to the Newton Corner Improvement Project where most of the public comments were made by email to NewtonCornerImprovements@dot.state.ma.us and now seeks to impose costs for the public to access the public comments. MassDOT is now requesting that the public pay for access to public comments because MassDOT did not have a process that allowed for meaningful public comments at the public meeting.” Based on the information provided in its fee petition, I find the Department 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 Department 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 Department may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. Gibson 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: Nathan S. Gibson