Christopher Naumes v. Massachusetts Bay Transportation Authority (SPR 20242786)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 15, 2024 SPR24/2786 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 October 8, 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(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, Christopher Naumes. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 3, 2024, Mr. Naumes requested: [1.] Crimes incident reports prepared by the MBTA police for the crimes of Aggravated Assault, Assault, Disorderly Conduct, Trespass, Harassment, Indecent Exposure, and Panhandling, at South Station in Boston, Massachusetts, for a one- year time period prior to the July 7, 2020. [2.] Crimes analysis reports prepared by the MBTA police for the crimes of Aggravated Assault, Assault, Disorderly Conduct, Trespass, Harassment, Indecent Exposure, and Panhandling, at South Station in Boston, Massachusetts for a three- year time period prior to July 7, 2020. [3.] Crimes statistics reports prepared by MBTA police for the crimes of Aggravated Assault, Assault, Disorderly Conduct, Trespass, Harassment, Indecent Exposure, and Panhandling, at South Station in Boston, Massachusetts for a three- year time period prior to July 7, 2020. 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 Ciollo, Esq. SPR24/2786 Page 2 October 15, 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 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 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 Ciollo, Esq. SPR24/2786 Page 3 October 15, 2024 Current Petition In its petition, the MBTA requests to charge fees for segregation and redaction of the responsive records, and argues the following in support of its request: Under exemption (c), redaction is allowed for records likely to contain personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. Responsive 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. Therefore, redaction would be appropriate under Exemption (c). The responsive records are also likely to contain investigatory information that will require redaction under Exemption (f) to the Public Records Law, which protects “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” These records may 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. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the MBTA has met its burden to explain how the response could not be prudently completed without segregation or redaction. I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. Please note, Mr. Naumes 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 Ciollo, Esq. SPR24/2786 Page 4 October 15, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Christopher Naumes