Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20240396)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 14, 2024 SPR24/0396 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: On February 6, 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, Mikhael El-Bayeh. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On January 22, 2024, Mr. El-Bayeh requested: [1] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records…related to, in whole or in part, the criteria for making, amending, or rescinding a special regulation, and for determining whether the same is consistent with the public interests…[;] [2] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records… related to, in whole or in part, the petitioning procedure, and MassDOT’s approval or denial of such petitions…[;] [3] Records associated with speed management group meetings[;] [4] Most recent available INRIX probe data for U.S. Route 3, without regard to the date range applicable to the first three parts of this request. 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). 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

William J. Doyle, Esq. SPR24/0396 Page 2 February 14, 2024 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). 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:

William J. Doyle, Esq. SPR24/0396 Page 3 February 14, 2024 [T]he Massachusetts Public Records Law allows redaction under Exemption (c) for records likely to contain “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. … [R]edaction under Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT may need to withhold internal discussions related to speed regulation policies under this exemption, if they pertain to negotiations and/or discussions which have not been completed. Although the requester has made two similar requests for earlier date ranges that have not contained ongoing deliberations, these records are closer in time to the present. In an email to this Division on February 11, 2024, Mr. El-Bayeh objects to the Department’s petition to assess fees, arguing “[M]assDOT’s fee petition is untimely…[M]assDOT’s initial response and fee petition occurred on February 6, which is the 11th business day following the January 22 receipt date of the request. MassDOT is misrepresenting the receipt date of my public records request as January 23. The request was in fact received on January 22, as evidenced by the attached email…” The Department is advised that in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). Despite the petition, it is unclear if the Department’s February 6th response met the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide this office with said response in accordance with the Public Records Law, its Regulations and this order within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Mikhael El-Bayeh