Mikhael El-Bayeh v. Massachusetts Department of Transportation (SPR 20242367)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2024 SPR24/2367 William J. Doyle, Esq. Assistant General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3150 Boston, MA 02116 Dear Attorney Doyle: On August 16, 2024, this office received your petition on behalf of the Massachusetts Department of Transportation (Department/MassDOT) 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 August 7, 2024 Mr. El-Bayeh requested the following: [1.] Any engineering study, where said engineering study was relied on, in whole or in part, to determine the speed limit(s) established by any associated special speed regulation, where said special speed regulation was purported to come into effect on or after September 1, 2021[;] [2.] Any special speed regulation, sign schedules, and regulated regulatory documentation where said special speed regulation is associated with the engineering studies identified in part 1 of this request[;] [3.] Policies, procedures, regulations, guidance, memorandums, emails, text messages, communications, and any other public records as defined by G.L. c. 4, § 7, twenty-sixth, discussing interpreting, mentioning, or otherwise related to in whole or in part the deliberative process and ultimate decision to establish any speed limit, and actions taken to establish any such speed limit, under part 1/or 2 of this request. Petition to Assess Fees – Agencies A fee shall not be assessed for time spent segregating or redacting records unless such 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. SPR24/2367 Page 2 August 27, 2024 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).

William J. Doyle, Esq. SPR24/2367 Page 3 August 27, 2024 Current Petition In its petition, the Department requests permission to charge for segregation and redaction, and provides the following information in support of its petition: We are currently conducting a search for responsive records. However, due to the substance of the request, we believe that some of the responsive records will require redaction: • involving privileged communications with attorneys • relating to policy positions being developed by an agency pursuant to Section 7(26)(d) With regard to the attorney/client privilege, we have provided similar records to this requester on several occasions, and have encountered records that are privileged communications between MassDOT personnel and MassDOT and/or Attorney General’s office attorneys, and include discussions seeking legal advice and/or opinion. These communications were sent or received during the course of the client’s search for legal advice/opinion, they were made in confidence, and the privilege has not been waived. See Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 450, n.9 (2007). Redaction under Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process. MassDOT may withhold records under this exemption if they pertain to negotiations and/or discussions which have not been completed. In light of the Department’s 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 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 Department may assess a fee for the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, 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. El-Bayeh 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).

William J. Doyle, Esq. SPR24/2367 Page 4 August 27, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Michael El-Bayeh