Maconga, Carson v. Massachusetts Bay Transportation Authority (SPR 20260963)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 23, 2026 SPR26/0963 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 March 17, 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, Carson Maconga. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 7, 2026, Mr. Maconga requested the following: . . . [C]opies of all certified payroll records (weekly certified payroll reports and statements of compliance) submitted by contractors and subcontractors for the Green Line Extension project between January 1, 2015 and December 31, 2019. This request includes, but is not limited to: [1] Weekly certified payroll reports submitted to the MBTA or MassDOT by prime contractors and subcontractors[;] [2] Statements of Compliance accompanying those reports[;] [3] Any labor compliance or prevailing wage monitoring records related to those submissions[.] Subsequent to the opening of this petition, the MBTA provided additional information to this office in an email dated March 23, 2026. 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 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 Ciollo, Esq. SPR26/0963 Page 2 March 23, 2026 (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 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 search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. Current Petition In its petition, the MBTA requests to assess a fee for “[performing] the necessary redaction on each page of nonexempt, responsive records” pursuant to Exemption (c) of the Public Records Law, and provides the following in support of its request:

Julie Ciollo, Esq. SPR26/0963 Page 3 March 23, 2026 An initial reading of Mr. Maconga’s request indicates that responsive records will likely contain personal information. Therefore, the MBTA must expend time redacting this information that is protected from disclosure under Massachusetts General Laws, Chapter 4, Sections 7(26)[(c)]. . . . Given the nature of the records sought, the MBTA expects that responsive material will contain medical information, financial information, and/or family status information. Therefore, redaction would be appropriate under Exemption (c). . . . Subsequently, in an email to this office on March 23, 2026, an MBTA representative confirmed that the MBTA seeks permission to assess a fee for time spent segregating and redacting the responsive records at an “hourly rate [of] $25/hours [sic], which 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.” Certified Payroll Records The disclosure of certified payroll records is governed by G. L. c. 149, § 27B, which states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or county, or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records . . . Such records shall be open to inspection by any authorized representative of the department at any reasonable time, and as often as may be necessary… The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. c. 149, § 27B. The statute provides that copies of certified payroll records must be available for inspection and copying by any interested party filing written request to the awarding authority. Id. The statute does not limit disclosure, but rather evidences a legislative intent to make these records available for inspection. Where the language of the statute does not restrict disclosure, the statutory right of citizens to inspect under the Public Records Law prevails. See Att’y Gen. v.

Julie Ciollo, Esq. SPR26/0963 Page 4 March 23, 2026 Collector of Lynn et al., 377 Mass. 151, 154 (1979) (statute providing that records be available to town officials does not exempt records since statute does not limit disclosure to the public); see also G. L. c. 4, § 7(26)(a) (exempting those records which are specifically or by necessary implication exempt from disclosure by statute). G. L. c. 149, § 27B evidences a legislative intent to make that information which is required to be provided by a contractor to the awarding authority open to public inspection. Further, in a 2002 Superior Court case, a construction company hired for a public construction project for the Massachusetts Water Resources Authority sought injunctive relief by asserting a privacy claim under Exemption (c) of the Public Records Law to prevent disclosure of the addresses and telephone numbers of the workers listed on the certified payroll records after the Supervisor of Records issued an order to the MWRA to disclose the records to the requesting party. See D’Amico, Inc., et. al. v. Massachusetts Water Resources Authority, Suffolk Sup. C.A No. 02-0369-A (Nov. 6, 2002). In his April 29, 2002 finding, Judge Thomas Conley denied the plaintiff’s motion for a preliminary injunction, stating, “[t]here is very little likelihood, if any, of the plaintiff prevailing in this matter, and there has been no showing of irreparable harm.” Id. Conclusion Accordingly, I find that where the certified payroll records are public under G. L. c. 149, § 27B, the MBTA has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Consequently, permission to charge for segregation and redaction under Exemption (c) cannot be granted. Please note, however, this determination does not preclude the MBTA from charging for segregation and redaction that may be required by law under Exemption (a). This office encourages Mr. Maconga and the MBTA to continue to communicate directly 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 to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the MBTA must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Sincerely, Manza Arthur Supervisor of Records cc: Carson Maconga