Tim Jensen v. Massachusetts Bay Transportation Authority (SPR 20242987)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2024 SPR24/2987 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On November 1, 2024, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (MBTA) requesting permission to assess fees for time spent segregating and 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, Tim Jensen. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 26, 2024, Mr. Jensen requested: Copies of records related to the incident on Tuesday, May 21, 2024, at approximately 6:05 AM involving a westbound (WB) train on the Green Line. This incident involved a misaligned hand throw switch, which resulted in damaged components at Charles Street storage near Arlington Station. Specifically, I am requesting the following: Names and roles of all individuals involved in the incident, including train operators, maintenance personnel, and other relevant MBTA employees. Photographs or images taken of the damage to the train or other components as a result of the incident. Reports regarding the incident, including any internal or external investigations and evaluations conducted by the MBTA or other authorities. Statements from any MBTA personnel or witnesses regarding the incident. Communications (including emails, text messages, or other forms of communication) involving MBTA employees or officials that reference or pertain to the incident. Any other records or documents relating to this specific incident such as discipline or discharges. 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 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. SPR24/2987 Page 2 November 6, 2024 (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 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 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 A. Ciollo, Esq. SPR24/2987 Page 3 November 6, 2024 Current Petition In its petition, the MBTA seeks to assess fees for time spent segregating and redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In support of its request, the MBTA provides the following information: [A]n initial reading of Mr. Jensen’s initial request indicates that responsive records will likely contain personal information, investigatory information, and safety/security-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)(c), (f) and (n). . . . [U]nder exemption (c), redaction is allowed for records likely to contain “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” See Worcester Telegram & Gazette Corp., 436 Mass. 378, 386 (2002). Therefore, redaction would be appropriate under Exemption (c). Responsive records will contain information about named individuals, such as personnel matters 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. . . . [T]he responsive records are also likely to contain investigatory information that will require redaction under Exemption (f) to the Public Records Law...[t]o the extent that responsive records contain details concerning investigatory techniques and methods, This information would need to be redacted or segregated prior to release. . . . [T]he request also 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 MBTA infrastructure, safety and vulnerability assessments, safety protocols, and related details that, in the hands of a bad actor, could be used to negatively impact transportation safety. In an email to this Division on November 4, 2024, Mr. Jensen objects to the MBTA’s petition to assess fees, arguing “...[my] request is not related to private matters but rather seeks records of an operational incident that bears significant implications for public safety. Ms. Ciollo suggests that the release of these records could interfere with investigatory proceedings, yet this incident occurred months ago, and I have yet to see any evidence that access would compromise an active investigation. While I recognize the need for security, the broad denial of records on the basis of unspecified security concerns does not align with the standards set forth in Massachusetts General Laws Chapter 66, Section 10, which permits limited redactions but does not authorize the blanket denial of records with public safety relevance. The exorbitant fee

Julie A. Ciollo, Esq. SPR24/2987 Page 4 November 6, 2024 assessment for redaction must be reassessed. The fee being charged here is excessive and appears designed to hinder access to records with substantial implications for public accountability and safety.” Based on the information provided in its fee 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 segregation or redaction. 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 redaction or segregation. To the extent the responsive records contain the exempt information as described above, the MBTA may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. 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 Mr. Jensen within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Jensen 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: Tim Jensen