Max Strahan v. Department of Fish and Game (SPR 20210276)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 9, 2021 SPR21/0276 Beverly Vucson, Esq. Department of Fish and Game 251 Causeway Street, Suite 400 Boston, MA 02114 Dear Attorney Vuscon: I have received your petition on behalf of the Massachusetts Department of Fish and Game (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On January 21, 2021, Max Strahan requested several categories of records involving a feasibility study including: a. All grant proposals that are being sought to pay for DMF’s ropeless fishing gear feasibility study. b. All documents constituting a description of the intent and sought outcomes of this study. c. Emails and contracts between parties that are going to participate in the study. d. All documents concerning the PI and manager of this study. Petition 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting 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. SPR21/0276 Page 2 February 9, 2021 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 agency 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 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 its petition dated February 3, 2021, the Department requests approval to assess fees for costs associated with responding to a public records request. The Department states that an “. . . initial search indicated that there were approximately 1,100 potentially relevant e-mails constituting more than 1,500 pages of documents.” The Department further states that “[s]ome of these emails 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).” The Department emphasizes that “. . . these records must be reviewed, segregated and redacted before the emails are produced … to the requestor.”

Beverly Vucson, Esq. SPR21/0276 Page 3 February 9, 2021 Conclusion In light of the Department’s petition, I find the Department has met its burden to explain how the response could not be prudently completed without the redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. See G. L. c. 66, § 10(d)(iv). 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). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Regulations. 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: Max Strahan