Brian McCarter v. Massachusetts Bay Transportation Authority (SPR 20251943)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2025 SPR25/1943 Julie A. Ciollo, Esq. Assistant General Counsel Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: I have received the petition of Brian McCarter appealing the response of the Massachusetts Bay Transportation Authority (Authority/MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). 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 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 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. SPR25/1943 Page 2 July 11, 2025 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. SPR25/1943 Page 3 July 11, 2025 Prior Petition This request was the subject of a prior fee petition. See SPR25/1895 Determination of the Supervisor of Records (July 9, 2025). In my July 9th determination, I found that the Authority had met its burden to assess a fee for the segregation and redaction of exempt material under Exemptions (c), (d), and (f) of the Public Records Law. The Authority responded on June 30, 2025. Unsatisfied with the response, Mr. McCarter petitioned this office and this appeal, SPR25/1943, was opened as a result. 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Authority’s June 30th Response In its June 30, 2025 response, the Authority estimated that it would require 120 hours to search for and compile the responsive records, 500 hours to segregate and redact the responsive records under the attorney-client privilege and Exemptions (c), (d), and (f) of the Public Records Law, and 5 hours to reproduce the responsive records. The Authority further detailed its fee estimate as follows: In order to fully comply with your request, an extensive manual search will need to be conducted to locate responsive records. Please be advised that records are not organized or tagged according to distance from specific coordinates. Therefore, numerous records must be searched for and pulled before an additional step can be made to determine if the subject matter concerns activity within the specific geographic radiuses. We estimate that several thousands of pages of

Julie A. Ciollo, Esq. SPR25/1943 Page 4 July 11, 2025 material must be pulled, with personnel spending approximately three weeks, or 120 hours on the search and compilation aspect of the response. Once responsive records are located, and additional manual work of segregation and redaction will begin. As you may have seen or will soon see, the MBTA filed a fee petition seeking permission to charge for segregating and redacting records to the extent they contain information exempted under the Public Records Law. We currently estimate that 10-20,000 pages of material will need to be reviewed for segregation and redaction at 2 minutes per page … Hourly rate: $25.00/hour. This hourly rate is 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 the records requested. No fee will be assessed for the first four hours of work. Therefore, the estimated cost of complying with your request is 621 hours of chargeable work at $25.00 per hour, or $15,525.00 … Additionally, we are happy to discuss an alternate scope so that records may be transmitted to you in a more efficient and affordable manner. Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Although the Authority has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 625 total hours of employee time, the Department has not provided sufficient explanation of why this amount of employee time is necessary. Specifically, the Authority must clarify how it requires 120 hours to search for

Julie A. Ciollo, Esq. SPR25/1943 Page 5 July 11, 2025 responsive records and 5 hours to reproduce responsive records. The Authority must also provide additional information regarding the tasks necessary to produce the responsive records. For the reasons discussed above, I find the Authority must revise its fee estimate or provide further explanation of how the fee of $15,525.00 assessed in its June 30, 2025 estimate is consistent with G. L. c. 66, § 10(d). This office encourages Mr. McCarter and the Authority to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Authority is ordered to provide Mr. McCarter with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. McCarter may appeal the substantive nature of the Authority’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter