Margaret E. Sheehan, Esq. v. Executive Office of Energy and Environmental Affairs (SPR 20210480)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 10, 2021 SPR21/0480 Julia O’Leary, Esq. Associate Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney O’Leary: I have received the petition of Margaret E. Sheehan of Community Land & Water Coalition appealing the response of the Executive Office of Energy and Environmental Affairs (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 26, 2021, Ms. Sheehan requested five categories of records related “to MEPA Certificate EEA # 13940: ADM Tihonet Mixed Use Development.” The Office provided a response on February 10, 2021, which included a fee estimate. Unsatisfied with the Office’s response, Ms. Sheehan petitioned this office and this appeal, SPR21/0480, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Julia O’Leary, Esq. SPR21/0480 Page 2 March 10, 2021 Fee estimate - 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. 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). The Office’s February 10th response In its February 10th response, the Office states “that a charge of $941.75 is necessary to process this production. This represents a fee of $25 per hour for employee time to search for, segregate, and scan approximately 2,500 pages of records which exist only in hard copy. We estimate it will take an average of one minute per page to scan these records.” The Office indicates “[t]here are additional records available electronically that we will waive the fee to produce. However, due to the volume and complexity of this request, we need additional time to produce these records. We expect to produce electronically available records by February 17, 2021.” The Office explains “[t]his time estimate is based on our experience scanning these types of records, as some records are bound or stapled, or are printed on oversized pages which require additional time to be prepared for scanning. Based on this, we estimate it will take EEA staff approximately 41.67 hours to search, segregate and scan these records. As we do not charge for the first four hours, the fee is estimated at $25 per hour for 37.6 hours, for a total of $941.75.” The Office notes “[i]f you would like to narrow your request, we may be able to waive all or part of the fee listed above... [a]t this time, we are unable to determine with specificity whether any public records or portions of records will be withheld or redacted in response to your request, and we are unable to identify the specific basis for any such withholding.” In her appeal, Ms. Sheehan indicates “[o]n February 10, 2021 I had a conversation with Ms. O’Leary about narrowing the request and waiving the fee as we are a public interest group. She stated she would respond to my offer for a staged production and narrowing the request. I have not heard back from Ms. O’Leary. I tried to leave voice messages on Feb. 22 and 24 but the mailbox is full. I sent two emails but have had no response.”

Julia O’Leary, Esq. SPR21/0480 Page 3 March 10, 2021 The Office’s response has not explained with specificity why the indicated amount of time is necessary for producing the requested records. The Office has not provided sufficient explanation to explain why 41.67 hours is necessary to search, segregate, and scan the records in order to comply with the records request; it is also unclear based on the Office’s response how much time is being allocated to each of these tasks. Further, I find the Office must provide confirmation that the hourly rate being assessed is that of the lowest paid employee who has the necessary skill required to produce the responsive records. The Office must clarify these matters. Further, it is unclear if the Office is assessing a fee for segregation and redaction that is not required by law. The Office is reminded that under the Public Records Law, a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law under Exemption (a) 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). The Office must clarify this matter. Further, this office encourages Ms. Sheehan and the Office to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(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). Conclusion Accordingly, the Office is ordered to provide a response to Ms. Sheehan in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Margaret E. Sheehan