Christian MilNeil v. Department of Conservation and Recreation (SPR 20210535)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 8, 2021 SPR21/0535 Michael Tencellent Paralegal Department of Conservation and Recreation 251 Causeway St. Boston, MA 02114 Dear Michael Tencellent: I have received your petition on behalf of the Department of Conservation and Recreation (Department) requesting permission to charge for time spent segregating or redacting responsive records under 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. Id. In a letter dated February 24, 2021, Christian MilNeil requested: “1. The contract between DCR and the Toole Design Group for design and consultancy services related to the 2015 ‘DCR Parkways Study.’ This contract would have been executed sometime after fall 2014 but before mid-October 2015. 2. Any and all email correspondence between mass.gov email addresses and tooledesign.com email addresses between 2015 and 2019 (inclusive) containing the words ‘DCR,’ or ‘parkway.’” 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). 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

Michael Tencellent SPR21/0535 Page 2 March 8, 2021 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 could not have been prudently completed without the redaction or segregation or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates - Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Current Petition In its petition dated March 3, 2021, the Department seeks “…approval to assess a fee of up to $4,762.50 for costs associated with responding to a public records request from Christian MilNeil.” The Department explains it “…has conducted a search for responsive records, identified approximately 750 responsive records and conducted a preliminary review of those records.” The Department notes that “DCR has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requestor.” Further, “[s]egregation and redaction of messages often involves the application of multiple exemptions to the public records law to a single message. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee estimates provided are for the segregation and

Michael Tencellent SPR21/0535 Page 3 March 8, 2021 redaction process as a whole, and in the view of undersigned counsel, cannot be split up by exemption.” The Department estimates “2 hours of staff time spent retrieving records and conducting an initial review. 187.5 hours of staff time to review and redact the records (30 minutes per record x 527 records = 263.5 hours).” Additionally, “[w]hile some records may be reviewed rather quickly, others will require more time to review and redact. 5 additional hours of staff time to prepare documents for production and produce them.” The Department contends, “[t]his estimate represents an actual and good faith representation. The cost is necessary, reasonable and is not designed to limit, deter, or prevent access to requested public records. DCR therefore requests that the Supervisor of Public Records approve the assessment of the above referenced fee.” Although the Department states “[s]ome information is simultaneously protected by more than one exemption or different exemptions,” it has not provided sufficient information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. 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. 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. MilNeil within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christian MilNeil

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