Cassandra Dumay v. Massachusetts Bay Transportation Authority (SPR 20250771)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2025 SPR25/0771 Julie Ciollo, Esq. Assistant General Counsel Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On March 21, 2025, this office received your petition on behalf of the Massachusetts Bay Transportation Authority (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 Authority furnished a copy of the petition to the requestor, Cassandra Dumay, of the Boston Globe. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On March 5, 2025, Ms. Dumay requested the following: [1] The MBTA Commuter Rail Operating Agreement requires the Commuter Services Operator Keolis to submit “notification within three Business Days), in writing, of any listed Operator Personnel or Subcontractors who leave the Operator’s (direct or indirect) employment.” I’m requesting all such notifications from Keolis to the MBTA about personnel or subcontractors who leave the operator’s (direct or indirect) employment, dated between January 1, 2020 to the date of this request[;] [2] The MBTA Commuter Rail Operating Agreement requires the Commuter Services Operator Keolis to “submit a complete list of Operator Personnel and Subcontractors that will perform the Services under this Agreement… At a minimum, the list shall include: 1) Name and Employee Number/Identifier; 2) Address; 3) Job Title; and 4) Hours and Location of Work.” I’m requesting all such lists of Operator Personnel and Subcontractors submitted from Keolis to the MBTA between January 1, 2020 and the date of this request. 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. SPR25/0771 Page 2 March 24, 2025 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 Ciollo, Esq. SPR25/0771 Page 3 March 24, 2025 Current Petition In its petition, the Authority requests, “to waive statutory limits to fees pursuant to 950 CMR 32.06(4)(g).” In support of its petition, the Authority provides the following information: The MBTA expects that responsive records will contain personal information about named individuals. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c). 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. Therefore, redaction would be appropriate under Exemption (c). Responsive records may contain personnel information about named individuals, such as a reason for leaving employment. These are highly personal details that are not otherwise available from other sources. There is no prevailing public interest requiring disclosure. In addition, the records may contain home addresses of named individuals. These individuals have not provided consent to have their private information published to a media outlet and there is no prevailing public interest requiring disclosure. The MBTA would also need to review each entry for the purpose of protecting victims of domestic violence or identities that must be shielded for other reasons, such as participation as a witness in an ongoing investigation or legal proceeding. In light of the Authority’s petition, I find the Authority 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 Authority 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 Authority may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Authority to provide records in an efficient and affordable manner. Please note, Ms. Dumay 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. SPR25/0771 Page 4 March 24, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Cassandra Dumay