Frank L. Bigelis v. Massachusetts Bay Transportation Authority (SPR 20240858)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2024 SPR24/0858 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On March 21, 2024, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) seeking an extension of time to produce records, permission to assess fees for time spent segregating and redacting responsive records and relief from its obligation to produce responsive records requested by Attorney Frank L. Bigelis of Hinckley Allen & Snyder, LLP. 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 requestor, Attorney Bigelis. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 8, 2024, Attorney Bigelis requested 16 categories of records regarding the Green Line Extension Design Build Project. In an email to this Division on March 27, 2024, Attorney Bigelis objects to the MBTA’s petition to assess fees and petition for relief, arguing “[w]hile the quantity of documents responsive to the PRR may well be large, such a production is commonplace when responding to public records requests and does not supply a valid basis to refuse production of clearly public records...[h]ere, the documents and records sought pertain to a deliberative process which has been completed. The requests in the PRR are reasonable, and the documents sought are readily available to the MBTA and do not require any substantive review or redaction.” Petition for relief from obligation to provide public records Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: 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. SPR24/0858 Page 2 March 28, 2024 (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the MBTA asserts, “…[H]inckley Allen’s request is expansive and unduly burdensome. The request then lists ‘specific requests’ which indicates that ‘the above request shall include, but not be limited to the following,’ before listing sixteen requests, many of which call for ‘copies of all documents.’ For those requests calling for ‘copies of all documents,’ the request then lists numerous ‘email custodians’ and ‘search terms’ from which it requests documents.” Additionally, “[H]inckley Allen’s request is a request for documents pursuant to Mass.R.Civ.P. Rule 3 disguised as a public records request…while Hinckley Allen has purportedly made the request on its own behalf, it is well known that Hinckley Allen represents one of the members of the joint venture comprising GLXC and that this ‘public records request’ is a ploy to obtain documents Hinckley Allen believes its undisclosed client requires in order to bolster its forthcoming claim against the MBTA.” Based on the information provided in the MBTA’s March 21st petition, I find that the MBTA has not demonstrated the requests are frivolous and not intended for the broad dissemination of information to the public about actual or alleged government activity, as required by G. L. c. 66, § 10(c).

Julie A. Ciollo, Esq. SPR24/0858 Page 3 March 28, 2024 Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current Petition In its petition, the MBTA requests “the maximum amount of time allowable under the statute” and provides the following information in support of its request: [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. … [T]he MBTA’s best estimate of the required time to locate the relevant documents would be over three hundred hours, as the MBTA would estimate that there are tens of thousands of documents related to the broadly requested information. In light of the need to collect, segregate and examine the records, as well as the capacity

Julie A. Ciollo, Esq. SPR24/0858 Page 4 March 28, 2024 of the MBTA 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)-(iii). The MBTA is granted an extension of 20 business days. 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. 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 understanding 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

Julie A. Ciollo, Esq. SPR24/0858 Page 5 March 28, 2024 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). Petition to Assess Fees In its petition, the MBTA requests “time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c), (d) and (n)[,]” and provides the following in support of its request: [T]he request calls for records that will require redaction under Exemption (n) to the Public Records Law…[s]pecifically, 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. … [T]he request also calls for records that will require redaction under Exemption (d) to the Public Records Law…[U]ntil the MBTA has completed its deliberative process concerning these, and other related topics, the release of this information could materially affect the MBTA’s ability to continue to develop its policy positions. Specifically, responsive records in this matter may contain information related to these deliberative processes. … [T]he request also calls for records that will require redaction under Exemption (c) to the Public Records Law…[s]pecifically, responsive records in this matter may contain personal identifying information and other personal details about MBTA customers or other private individuals. 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 As described above, I find that the MBTA has established good cause for a time extension of 20 business days. Further, 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

Julie A. Ciollo, Esq. SPR24/0858 Page 6 March 28, 2024 and redaction. Further, I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. However, I cannot grant the MBTA’s petition seeking relief from its obligation to produce responsive records at this time. Please note, this office may deny an appeal if, in the opinion of the Supervisor of Records, the request is designed or intended to harass, intimidate, or assist in the commission of a crime. See 950 C.M.R. 32.08(2)(b)(2). 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 within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Attorney Bigelis 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: Frank L. Bigelis, Esq.