Jacob Schles v. Massachusetts Bay Transportation Authority (SPR 20252794)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2025 SPR25/2794 Julie A. Ciollo, Esq. Records Access Officer Massachusetts Bay Transportation Authority 10 Park Plaza, Suite 7760 Boston, MA 02116 Dear Attorney Ciollo: On September 23, 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, Jacob Schles. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 9, 2025, Mr. Schles requested the following records: All emails between employees of McKinsey & Company and MBTA employees from 2015 to 2016, and throughout 2020, as well as internal communications regarding McKinsey’s contract work. Presentations, financial agreements, contract discussions, and memos are of particular interest. I am not requesting emails or communications between January 1, 2017 and December 31, 2019, only between January 1, 2015 and December 31, 2016, and between January 1, 2020 and December 31, 2020. Please enter in the email search keywords: “McKinsey”, “McKinsey & Company”, “McKinsey & Co”, “privatization”, “privatize”, “viable external market”, “contract extension”, “Local 589”. 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 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. SPR25/2794 Page 2 September 29, 2025 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. 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: [D]uring our initial search, and in an attempt to comply with your request, it has been determined that there are between 2,500-3,000 records that are responsive to

Julie A. Ciollo, Esq. SPR25/2794 Page 3 September 29, 2025 your request. [A]n initial reading of Mr. Schles’ request indicates that responsive records will likely contain policy development 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)(d) and the attorney-client privilege. [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.” Given the subject matter specified in the request, 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 ongoing deliberative processes within the MBTA. [I]n addition, certain responsive records will contain material that is protected by the attorney-client privilege, which applies to the Public Records Law. These communications are between MBTA personnel and MBTA attorneys concerning MBTA legal matters. The MBTA relied on this privilege in ensuring that the provision of candid legal advice, made in confidence, would result in the MBTA fulfilling its legal obligations and taking certain actions. The MBTA has not waived the privilege concerning these communications. 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. Further, I encourage the parties to communicate further to enable the MBTA to provide records in an efficient and affordable manner. When preparing a fee estimate for the provision of the requested records, the MBTA is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The MBTA must provide a response to Mr. Schles within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Julie A. Ciollo, Esq. SPR25/2794 Page 4 September 29, 2025 Please note, Mr. Schles 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: Jacob Schles