Kevin Cassidy v. Department of Environmental Protection (SPR 20202580)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 31, 2020 SPR20/2580 Kathleen Delaplain, Esq. Department of Environmental Protection One Winter Street, Third Floor Boston, MA 02108 Dear Attorney Delaplain: I have received your petition on behalf of the Department of Environmental Protection (Department) seeking to charge permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor. Id. On December 9, 2020, Attorney Kevin Cassidy requested 23 categories of records concerning “the Commonwealth of Massachusetts’ plans to purchase and import 1,200 megawatts of hydropower from Canadian producer Hyrdo- Quebec in order to meet the state’s Clean Energy Standard’s for greenhouse gas (GHG) reductions.” Petitions to Assess Fees The Supervisor of Records (Supervisor) may approve a petition from an agency to charge for time spent segregating or redacting or to charge in excess of $25 per hour, 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). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency's petition to allow the agency 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 the request is not for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request 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

Kathleen Delaplain, Esq. SPR20/2580 Page 2 December 31, 2020 could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 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 the Department’s December 23, 2020 petition, it seeks “permission to charge $625 for 25 hours of segregation and redaction time, at a rate of $25 per hour.” The Department notes,“[w]e have conducted a preliminary search for responsive records, through beginning the process of interviewing key staff with responsive records. Staff have said that there could easily be over 1000 responsive records in response to the full request, including internal staff emails. We anticipate that any emails especially will contain both potentially privileged materials and materials exempt from disclosure under the Public Records Law.” In its petition the Department states, “MassDEP is responsible for preventing the dissemination of information that is protected from disclosure by law, such as attorney-client privileged communications, and these communications are prevalent throughout our records, especially in our emails. For example, item #4 of the request asks for: ‘[a]ll documents relating to…laws dealing with the method used…to count GHG from Canadian Hydropower...’ A government agency such as MassDEP, that has in house counsel to assist in writing, reviewing, and interpreting laws, will likely have attorney-client privileged communications responsive to this item.” The Department further notes, “[w]e anticipate some records may contain materials exempt from disclosure under the Public Records Law, including without limitation M.G.L. c. 4, § 7, cl. 26 (a), (b), (c), (d), (e) and (o). For example, we are likely to find internal meeting call-in

Kathleen Delaplain, Esq. SPR20/2580 Page 3 December 31, 2020 codes, exempt under exemption (b); staff private phone numbers (especially for anything since March 2020), exempt under exemption (c); and possibly other deliberative process materials, again mixed in with email communication.” The Department posits that “[g]iven the sheer volume of responsive records, it is estimated that at least 25 MassDEP attorney hours will be required to review all of the records to identify attorney-client privileged information and any exempt information. Based on the foregoing, we are requesting permission to charge fees for segregation and redaction in the amount of $625.” 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. 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Kevin Cassidy, Esq.