Mark B. Lavoie v. Department of Environmental Protection - Bureau of Waste Site Cleanup (SPR 20181576)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 2, 2018 SPR18/1576 Anne Berlin Blackman Chief Regional Counsel MassDEP Central Regional Office 8 New Bond Street Worcester, MA 01606 Dear Attorney Blackman: I have received your petition on behalf of the Department of Environmental Protection (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § lO(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv)(2). In a request submitted on October 12, 2018, Attorney Mark Lavoie of McDonough, Hacking & Lavoie, LLC requested "the entire file pertaining to an incident at [a n identified address] on October 22, 2016." Petitions for ability to assess fees 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, § lO(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 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). 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

Anne Berlin Blackman, Esq. SPR18/1576 Page2 November 2, 2018 The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting if the Supervisor determines that 1) the request is for a commercial purpose; or 2) the fee represents an actual and good faith representation by the agency to comply with the request. G. L. c. 66, § 10(d )(iv). 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). EOPSS's petition In its October 26, 2018 petition, the Department "seeks permission to charge fees for employee time spent on segregating and redacting records for reasons beyond those strictly required by law." The Department indicates "the redactions to be made serve the important purpose of protecting from disclosure information that is exempted by statute." The Department explains "[t]he subject of the request ... was a release of hazardous materials into the environment that is being actively investigated by MassDEP and by the Attorney General. Because the investigation of the release is ongoing, many of the emails and other documents that are responsive to the Request contain information the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest and which therefore falls within the scope of the 'investigatory exemption' provided in G. L. c. 4, §7, clause 26(f)." The Department further explains "because MassDEP deliberations regarding the release and the investigation thereof have not yet been concluded and may lead to further litigation, many of the emails and other documents that are responsive to the Request contain information that relates to legal policy positions being developed and premature disclosure of such materials could taint the process. Accordingly, those records fall within the scope of the 'deliberative process' exemption provided in G. L. c. 4, §7, clause 26(d)." The Department also claims "the redactions to be made serve the important purpose of attorney-client privileged communication." The Department states "the $1,050 fee represents an actual good faith representation by MassDEP to comply with the Request, and is necessary such that the Request cannot prudently completed without segregation and redaction, and the amount of the fee is reasonable." The Department explains "in order to ensure that the attorney-client communication involving the solicitation or provision of legal advice is not inadvertently made public, it is necessary for MassDEP's attorneys to review most of the 2,000 records that fall within the scope of the request. Given the sheer volume of responsive records, it is estimated that up to 75 MassDEP attorney hours will be required to review all the records to identify client privileged information." The Department indicates "in order to place less of a financial burden on the requester, however, MassDEP is only proposing to charge a fee of $1,050 for 42 staff hours." In a footnote the Department explains it "is proposing a fee of $1,050 for 46 hours of staff time for segregation and redaction at $25/hour."

Anne Berlin Blackman, Esq. SPR18/1576 Page 3 November 2, 2018 I understand the Department provided an initial fee estimate to Attorney Lavoie on October 25, 2018 "regarding the scope of the Request, MassDEP's estimate of fees, and MassDEP's intention to file this petition." Attorney Lavoie indicated in an email dated October 29, 2018 that he had "narrowed certain areas" of his request, but after a member of the Public Records Division staff contacted the Department, it was said that this did not change the scope of the request and the documents needed to be reviewed for segregation and redaction. In light of the Department's October 26th petition, the Department has met its burden to explain how the fee is necessary such that the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § lO(d)(iv). The Department has also demonstrated the fee is not designed to limit, deter or prevent access to requested public records. G. L. c. 66, § 10( d)(iv). Therefore, the Department may assess a fee for the time spent to segregate and redact the requested records. Conclusion For the reasons described above, the Department is allowed to charge for the time to segregate and redact the requested records. This office encourages Attorney Lavoie and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §lO(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 records sought more efficiently and affordably). Please note, the requestor 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(d)(iv)(4), lOA(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark Lavoie, Esq.