Kevin Davis v. Massachusetts Bay Transportation Authority (SPR 20240708)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2024 SPR24/0708 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 March 7, 2024, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the MBTA furnished a copy of this petition to the requestor. Id. On February 26, 2024, Kevin Davis requested the following records as “related to the MBTA Transit Police Internal Affairs Complaint”: [1.] All Electronically Stored Information (ESI) between [an identified MBTA official] and [an identified individual]. . .[;] [2.] All [ESI] between [an identified MBTA official] and [an identified individual]. . .[;] [3.] All [ESI] between [an identified MBTA official] and [an identified former U.S. Attorney for Massachusetts]. . .[;] [4.] All [ESI] between [an identified MBTA official] and [an identified former Boston Globe reporter]. . .[;] [5.] All [ESI] between [an identified MBTA official] and [an identified Boston Globe reporter]. . .[;] [6.] All [ESI] between [two identified MBTA officials]. . .[;] [7.] All [ESI] between [an identified MBTA official] and [an identified Assistant District Attorney]. . .[;] In making his request, Mr. Davis specified that he sought “all ESI in its original native format, along with its associated metadata” and indicated that his request “applies to [an identified MBTA official’s] department email, department landline, and department issued cellular telephone.” 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. SPR23/0708 Page 2 March 8, 2024 Petition to Assess Fees – Agencies 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). 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 – 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. SPR23/0708 Page 3 March 8, 2024 Current Petition In its March 7th petition, the MBTA seeks permission “to waive statutory limits on charging fees pursuant to 950 CMR 32.06(4)(g).” In support of its request, the MBTA explains: An initial reading of Mr. Davis’ request indicates that responsive records will likely contain personal information about named individuals and information concerning an open and ongoing investigation and/or investigative techniques. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c) and (f). . . . [Under Exemption (c), [r]esponsive records will contain reports or information about named individuals, such as license numbers, social security numbers, home addresses, home phone numbers, medical condition information, and other personal data which, if made public, would result in personal embarrassment to the named individuals. These are highly personal details that are not otherwise available from other sources. There is no prevailing public interest requiring disclosure. . . . The responsive records are also likely to contain investigatory information that will require redaction under Exemption (f) to the Public Records Law…. These records may also contain non-public information about investigative techniques, the disclosure of which could materially impact current or future investigations. In light of the MBTA’s 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 redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find that, to the extent the responsive records contain the exempt information described above, the MBTA may assess a fee for segregation and redaction. Please note, Kevin Davis 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. SPR23/0708 Page 4 March 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Kevin Davis