Grace Ferguson v. Massachusetts Bay Transportation Authority (SPR 20242844)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 21, 2024 SPR24/2844 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 16, 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, Grace Ferguson, of The New Bedford Light. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 4, 2024, Ms. Ferguson requested “all reports filed by WSP for the South Coast Rail project since January 1, 2023.” 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 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. SPR24/2844 Page 2 October 21, 2024 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 MBTA requests to charge fees for segregation and redaction of the responsive records, and argues the following in support of its request: An initial reading of Ms. Ferguson’s request indicates that responsive records will likely contain policy development information and security and/or safety-sensitive information. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(d) and (n). The request calls for records likely to contain material that will require redaction under Exemption (d) to the Public Records Law, which protects “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.” Based on the records custodian’s familiarity with the responsive records, they are likely to contain ongoing policy development information. This information does not constitute factual studies or reports but is rather

Julie Ciollo, Esq. SPR24/2844 Page 3 October 21, 2024 recommendations on legal and policy matters found within the ongoing deliberative processes within the MBTA. The request also calls for records that will require redaction under Exemption (n) to the Public Records Law, which protects records that “relate to internal layout and structural elements, security measures, emergency preparedness… or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the Commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety.” Specifically, responsive records in this matter may contain information about and 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. 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, Ms. Ferguson 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: Grace Ferguson