Janet Cheung v. Massachusetts Bay Transportation Authority (SPR 20252938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2025 SPR25/2938 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 Janet Cheung appealing the response of the Massachusetts Bay Transportation Authority (MBTA) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 1, 2025, Ms. Cheung requested: Line item breakdowns of cost elements including any change orders and schedule of values along with executed construction contracts for the following commuter rail stations: Natick, North Wilmington, Lynn, Winchester Center, Middleborough, East Taunton, Freetown, Fall River Depot, Church Street, New Bedford, Worcester, Chelsea, Blue Hill Avenue, Wachusett, South Acton. The MBTA responded on July 10, 2025 and July 16, 2025, assigning the request reference number R000808-070125 and providing a fee estimate. Unsatisfied with the MBTA’s responses, Ms. Cheung petitioned this office and this appeal, SPR25/2938, 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 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. SPR25/2938 Page 2 October 16, 2025 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). The MBTA’s July 10th and July 16th Responses In its July 10, 2025 response, the MBTA stated: Due to the volume of documents that must be reviewed in order to provide you with a full response, I write to you to discuss how your request might be modified to provide for a more affordable and efficient response… Absent an agreement to narrower terms, we anticipate that responding to this request may require a calculation and assessment of fees. In its July 16, 2025 response, the MBTA assessed a fee of $150.00 to provide the responsive records. In support of its fee estimate, the MBTA stated: This request does not identify a specific time frame, and the materials sought pertain to multiple projects covering an extensive period and various locations. As part of a search for responsive records, I am advised that responsive records may exist within large volumes of electronic files. Description of work to be done In order to fully comply with your request, multiple MBTA staff members would need to conduct many searches across numerous databases and record systems. Given the broad nature of the request, additional time will be required to identify the specific projects referenced. Staff will need to review and analyze various data sources to determine the types of records that may be responsive to your request. This process will involve retrieving, examining, and organizing large volumes of records, as well as carefully segregating non-responsive materials from those that are potentially responsive. The effort will require coordination across different departments to ensure an accurate and thorough search. Estimated time to complete described work Search and compilation time: 8.50 hours Reproduction time: 1.50 hours Total estimated time: 10.00 hours

Julie A. Ciollo, Esq. SPR25/2938 Page 3 October 16, 2025 Hourly rate and estimated fee 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 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 6 hours of chargeable work at $25.00 per hour, or $150.00. Current Appeal In her appeal petition, Ms. Cheung requested a fee waiver and stated, “[the] request is being made in the public interest in order to research and inform the ongoing advocacy on the MBTA’s accessibility and operational efficiency needs on the Commuter Rail. There is no commercial interest associated with this request.” 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 In this case, the MBTA has explained the amount of time it requires to search for and compile the responsive records and is not charging a fee for segregation or redaction. Further, where the MBTA has confirmed that an hourly rate of $25.00 is equal to or less than the hourly rate of the lowest paid individual with the skill necessary to perform those tasks, and confirmed that it is not assessing a fee for the first four hours of work, I find that the MBTA has met its burden to establish that it would take this amount of time to produce the responsive records. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record).

Julie A. Ciollo, Esq. SPR25/2938 Page 4 October 16, 2025 This office encourages Ms. Cheung and the MBTA to communicate to facilitate providing records more efficiently and affordably. Ms. Cheung may wish to narrow her request. 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, I will now consider this administrative appeal closed. If Ms. Cheung is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Janet Cheung