Samantha Kummerer v. Massachusetts Bay Transportation Authority (SPR 20242893)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 28, 2024 SPR24/2893 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 22, 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 the petition to the requestor. Id. On October 7, 2024, Samantha Kummerer requested “videos showcasing the following incidents. . .”: [1] June 13, 2024 on a bus at Nubian Square around 4 pm regarding an attack on a bus operator. Related to [an identified] tweet[;] [2] 2/21/2024 on a GL shuttle bus around 11 pm at Comm Ave and Babcock. Related to [an identified] tweet[;] [3] June 9, 2024 at 5:30 pm on a quincy bus. Related to [an identified] tweet[;] [4] October 31, 2023 at 5 pm - related to [an identified] tweet[;] [5] 12/7/2023 130PM Centre St. JP. SP - related to [an identified] tweet[;] [6] February 4, 2022 8:50PM MBTA bus at Boston Medical Center in Boston. Relevant [to an identified] tweet[;] [7] bus in Chelsea at Bellingham Square on Sunday, July 25, 2021, at approximately 3:57 PM. Relevant [to an identified] tweet[;] [8] MBTA bus at the intersection of Columbus Avenue and Washington Street on Sunday, November 12, 2017, at approximately 5:37 PM. Relevant [to an identified] tweet[;] [9] the intersection of Cambridge Street and Highgate Street in Allston on Wednesday, July 11, 2018, at approximately 6:00 AM. Relevant [to an identified] tweet[.] 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. SPR24/2893 Page 2 October 28, 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. SPR24/2893 Page 3 October 28, 2024 Current Petition In its October 22nd petition, the MBTA seeks permission to assess fees for segregation and redaction of the responsive videos at an hourly rate of $25. In support of its request, the MBTA advises that the responsive videos contain information that falls under Exemption (c) of the Public Records Law. G.L. c. 4, §7(26)(c). An initial reading of Ms. Kummerer’s requests indicates that responsive records will likely contain personal information, given that all incidents involve assaults on identifiable individuals and/or juveniles. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c). . . . Responsive records will contain imagery of assault on identifiable individuals or medical information 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. 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, Ms. Kummerer 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: Samantha Kummerer