Richard Maximus Strahan v. Department of Fish and Game (SPR 20201478)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 2, 2020 SPR20/1478 Beverly Vucson, Esq. General Counsel Massachusetts Department of Fish and Game 251 Causeway St. #400 Boston MA 02114 Dear Attorney Vucson: I have received your petition on behalf of the Department of Fish and Game (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Richard Maximus Strahan. Id. In a letter dated August 13, 2020, Mr. Strahan requested: 1. The official administrative record for your agencies entering into a 1993 Memorandum of Understanding with the Division of Marine Fisheries over the authority to administer the Massachusetts Endangered Species Act concerning endangered marine wildlife. 2. The official administrative record for your agencies entering into a 2004 revised Memorandum of Understanding with the Division of Marine Fisheries over the authority to administer the Massachusetts Endangered Species Act concerning endangered marine wildlife. 3. The official administrative record for your agencies entering into a 2012 revised Memorandum of Understanding with the Division of Marine Fisheries over the authority to administer the Massachusetts Endangered Species Act concerning endangered marine wildlife. 4. All documents (regulations, statutes, policy statements, memorandum of understanding, written legal opinions, etc. ) that underlies the current Department of Fish and Game policy that “... the Division of Marine Fisheries (DMF) has the responsibility of protecting and managing all of the State’s living marine resources.” On August 18, 2020, the Department expressed to Mr. Strahan “that with respect to requests 1 through 3, DFG does not have records responsive to the request...With respect to 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

Beverly Vucson, Esq. SPR20/1478 Page 2 September 2, 2020 request 4, the request does not adequately describe records being sought.” In a follow-up letter dated August 18, 2020, Mr. Strahan revised his request and included the following additional request for “[a]ny documents that references, mentions, or concerns these MOA’s.” Petitions to Assess Fees 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 (Supervisor) under a petition under 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 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. 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; 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 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

Beverly Vucson, Esq. SPR20/1478 Page 3 September 2, 2020 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 dated August 26, 2020, the Department “petitions the Supervisor of Public Records for approval to assess fees for costs associated with responding to a public records request submitted by Max Strahan.” The Department indicates, “DFG affirmed in an August 26, 2020 response to Mr. Strahan that it does not have records concerning any MOUs other than the 1994 MOU since that MOU has not been revised or amended.” The Department notes the Executive Office of Technology Services and Security (EOTSS) conducted a preliminary search for any documents that reference, mention, or concern the 1994 MOU and “EOTSS advised DFG that there were 1,800 potentially responsive records to the request.” The Department states “[t]hese records which span a timeframe from 1994 to present are likely to contain information that is attorney client privileged, deliberative and/or covered by the privacy exemption under the public records law at M.G.L. c. 4 § 7 (26) (c) and (d). Accordingly, these records must be reviewed, segregated and redacted before the emails are produced to a third party such as the requestor.” The Department explains, “[g]iven that there are 1,800 records which DFG must review, segregate and redact, this will impose an onerous burden on DFG which will have to devote limited resources to review and redact these records. As stated above, DFG has an obligation under law to ensure that attorney client privileged and/or private information protected under exemption (c) is not disclosed.” The Department posits “The Massachusetts Rules of Professional Conduct and the common law prohibit an attorney from releasing privileged materials without the consent of a client. In this case, DFG has not waived the privilege with respect to any privileged material contained in the requested emails. Accordingly, segregation and redaction are required by law.” I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records.

Beverly Vucson, Esq. SPR20/1478 Page 4 September 2, 2020 This office encourages Mr. Strahan and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(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 municipality to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary and how the redactions are required by law. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Strahan within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Mr. Strahan may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Strahan 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), 10A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Richard M. Strahan