Brian McCarter v. Massachusetts Bay Transportation Authority (SPR 20251895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2025 SPR25/1895 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 June 30, 2025, 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, Brian McCarter. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 22, 2025, Mr. McCarter requested: [T]he following records from the MBTA Transit Police Department for the time period January 1, 2023 to present [r]egarding the following locations (and within a 0.25-mile radius): [seven identified locations] [1] All incident reports, arrest records, daily or monthly incident logs, and internal communications — including emails, text messages, or direct messages sent via platforms such as Microsoft Teams, Signal, Slack, or similar — for any event that occurred at or within 0.25 miles of the locations listed above. Please include incidents classified such as: [seventeen specified classifications;] [2] Any daily or monthly incident summary logs maintained by Transit Police that include these locations or surrounding areas. [3] Any internal memoranda, threat assessments, or safety alerts issued by Transit Police related to these locations. [4] [A]ny maintenance logs, service requests, or incident reports generated by MBTA Facilities, Customer Support, or contracted vendors for the following 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. SPR25/1895 Page 2 July 9, 2025 issues within 0.25 miles of the above listed stops from January 1, 2023 to present: Needle disposal or sharps removal[;] Shelter or bench cleaning/repair[;] Biohazard cleanup (including bodily fluids, human waste, or hazardous materials)[;] Graffiti or vandalism[;] Reports of encampments or obstructions affecting bus operations or rider access[;] the date, location, nature of the issue, and any available notes or photos submitted by field personnel[;] [5] [A]ll complaints, safety audits, risk assessments, or internal warnings received or issued by MBTA, Transit Police, MBTA Facilities, or contractors concerning public safety, crime, biohazards, or environmental dangers within 0.25 miles of the locations listed above. This includes complaints from riders, employees, operators, or third parties, whether submitted through formal channels or informally documented[;] [6] [A]ny memoranda, emails, correspondence, or reports originating from MBTA Legal, Risk Management, or third-party insurers that reference public safety risks, legal liability, or potential claims involving the areas listed above. This includes discussions of assault, overdose, encampments, shelter degradation, or known environmental hazards[;] [7] [A]ll work logs, service reports, and internal or contractor-submitted records relating to sanitation, shelter maintenance, needle/biohazard removal, or encampment response within the requested area. Include contracts, scopes of work, and any complaints by contractors about unsafe working conditions[;] [8] [A]ll EMS or overdose response records received, logged, or shared with MBTA Transit Police or Facilities, staff dispatch records, overdose response logs, or incident summaries from January 1, 2023 to present for medical or overdose incidents within 0.25 miles of the listed locations[;] [9] [A]ll injury logs, incident reports, union grievances, or OSHA filings made by MBTA employees or contractors concerning assaults, injuries, or unsafe working conditions within 0.25 miles of the listed locations[;] [10] [A]ny internal communications regarding a decision not to issue a public safety bulletin, formal rider alert, or other public warning despite known or ongoing danger at or near the locations listed at the top of this request. [11] [A]ny available metadata showing dates of record creation, sender, and recipient[;] [12] [A]ny policies, notices, or instructions to staff regarding deletion, delay, or limitation of reporting incidents in the areas listed above.

Julie A. Ciollo, Esq. SPR25/1895 Page 3 July 9, 2025 Open Appeal This request is currently the subject of an appeal. See SPR25/1943. A determination will be issued separately within ten business days of receipt of the appeal. 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. 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

Julie A. Ciollo, Esq. SPR25/1895 Page 4 July 9, 2025 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, in addition to charging for segregation and redaction under attorney-client privilege, the MBTA argues the following in support of its request to charge for segregation and redaction under Exemptions (c), (d), and (n) of the Public Records Law: An initial reading of Mr. McCarter’s request indicates that responsive records will likely contain personal information, policy development information, investigatory information, and attorney client communications. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)(c), (d) and (f), as well as the attorney-client privilege. Under 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 which, if made public, would result in personal embarrassment to the named individuals. These are highly personal details including, but not limited to, social security numbers, victim information, medical status, reputation, government assistance, that are not otherwise available from other sources. There is no prevailing public interest requiring disclosure. 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.” Given the broad nature of topics identified within the request, certain responsive records will contain information concerning ongoing, non-public policy development within the MBTA. This 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. The responsive records are also likely to contain investigatory information that will require redaction under Exemption (f) to the Public Records Law, which protects “investigatory materials necessarily compiled out of the public view by

Julie A. Ciollo, Esq. SPR25/1895 Page 5 July 9, 2025 law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” To the extent that any records contain details concerning open and ongoing police investigations, certain investigatory details would need to be segregated or redacted prior to release. 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, Mr. McCarter 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: Brian McCarter