Brian McCarter v. Massachusetts Bay Transportation Authority (SPR 20252398)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 27, 2025 SPR25/2398 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. SPR25/2398 Page 2 August 27, 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. SPR25/2398 Page 3 August 27, 2025 Prior Appeal and Petition This request was the subject of a prior appeal and fee petition. See SPR25/1895 Determination of the Supervisor of Records (July 9, 2025) and SPR25/1943 Determination of the Supervisor of Records (July 11, 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. In my July 11th determination, I found that the Authority must revise its fee estimate or provide further explanation of how the assessed fee was consistent with the Public Records Law. The Authority responded on June 30 and July 15, 2025. Unsatisfied with the response, Mr. McCarter petitioned this office and this appeal, SPR25/2398, 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 and July 15th Responses 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

Julie A. Ciollo, Esq. SPR25/2398 Page 4 August 27, 2025 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 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. In its July 15, 2025 response, the Authority provided the following clarification with regard to its estimate of 120 hours to search for responsive records, and 5 hours to reproduce responsive records: You have submitted 10 broad and at times vague requests. All of your requests ask for numerous categories of records, including the following: 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, daily or monthly incident summary logs maintained by Transit Police, internal memoranda, threat assessments, or safety alerts issued by Transit Police, maintenance logs, service requests, or incident reports generated by MBTA Facilities, Customer Support, or contracted vendors, 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, work logs, service reports, and internal or contractor-submitted records relating to sanitation, shelter maintenance, needle/biohazard removal, or encampment response, 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, all injury logs, incident reports, union grievances, or OSHA filings made by MBTA employees or contractors concerning assaults, injuries, or

Julie A. Ciollo, Esq. SPR25/2398 Page 5 August 27, 2025 unsafe working conditions, internal communications regarding a decision not to issue a public safety bulletin, formal rider alert, or other public warning. Further, you have restricted the above categories to records related to a wide range of geographic areas. A full response will require numerous personnel across numerous MBTA departments to query databases or perform manual searches to compile potentially responsive areas. Because records are not categorized by proximity to a certain location, a manual review must take place to ensure that the subject matter matching your request comports with the chosen geographic areas. This work is compounded by the fact that you have chosen a time period of over two and a half years across every category of request. Given the numerous departments needed to engage on your requests, the dozens of categories of records, and the need for an extensive manual search to determine which records comport to the chosen geographic areas, we estimate each request may take at least 12 hours to complete the search and compilation portion of the MBTA’s response. Please note that the MBTA does not permit text messaging to be used for substantive business communications. If you wish you pursue any portion of your requests asking for text messages, please know that this is a manual search requiring an inspection of every MBTA-issued text-enabled device, of which there are hundreds if not thousands. The MBTA estimates at least 5 hours of reproduction time, which comports to 30 minutes per request. This work includes reproducing records in a redacted format once redactions have been applied, or uploading records that do not require any redaction. In light of the information provided in the Authority’s June 30th and July 15th responses, I encourage Mr. McCarter and the Authority to communicate in order to facilitate producing records efficiently and affordably. Mr. McCarter may wish to narrow his request. The Authority must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, I will consider this administrative appeal closed. Any revision to the request would result in the requirement to issue a revised fee estimate.

Julie A. Ciollo, Esq. SPR25/2398 Page 6 August 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Brian McCarter