Philip Reilly v. Massachusetts Bay Transportation Authority (SPR 20251835)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2025 SPR25/1835 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On June 25, 2025, 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, Philip Reilly. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 10, 2025, Mr. Reilly requested 38 categories of records pertaining to the Symphony Project, Quincy Project and Newtonville Project. 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 determination 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 A. Ciollo, Esq. SPR25/1835 Page 2 July 1, 2025 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 seeks to assess fees for time spent segregating and redacting responsive records. In support of its request, the MBTA provides the following information: [A]n initial reading of the above requests indicates that responsive records will likely contain deliberative process information, security and/or safety-sensitive information as well as attorney-client privileged records. 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). [T]he 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 record custodian’s familiarity with the responsive records, they are likely to contain ongoing deliberative process information. This

Julie A. Ciollo, Esq. SPR25/1835 Page 3 July 1, 2025 information does not constitute factual studies or reports but is rather recommendations on legal and policy matters found within the ongoing deliberative processes within the MBTA or via an intra-agency deliberative process. [T]he 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 track 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 June 27, 2025, Mr. Reilly objects to the MBTA’s petition to assess fees, arguing “[t]hese records, according to the MBTA, may contain security-sensitive information, deliberative process information, and attorney-client privileged information that requires extensive segregation and redaction. CIM’s request is, in fact, much less burdensome than suggested. As excerpted by the MBTA in its email correspondence, the request may appear broad and vague. That excerpt, however, lacks the definitions and instructions which precede the request. When read in conjunction with the definitions and instructions, the request is deliberately limited to records from three ongoing construction projects, along with a small number of MBTA policy documents.” 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. Also, I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. Please note, Mr. Reilly 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 A. Ciollo, Esq. SPR25/1835 Page 4 July 1, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Philip Reilly