Richard Bulger v. Department of Environmental Protection (SPR 20210658)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2021 SPR21/0658 Kathleen Delaplain, Esq. Senior Counsel Department of Environmental Protection One Winter Street Boston, Massachusetts 02108 Dear Attorney Delaplain: I have received your petition on behalf of the Department of Environmental Protection (Department) requesting 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. Id. In a letter dated March 3, 2021, Attorney Richard F. Bulger of Mayer Brown LLP requested various records “…pertaining to Fort Devens Superfund Site records and PFAS.” Petitions to Assess Fees - Agency 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). 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. SPR21/0658 Page 2 March 25, 2021 Current Petition In its petition dated March 17, 2021, the Department seeks “…permission to charge fees for segregating and redacting not only attorney-client privileged materials, but also any exempt records.” The Department states, “…to process the request as is, without narrowing, would be a huge undertaking and will incur a substantial fee. Specifically, all the ‘including but not limited’ language in Item #1 and also item #5 are overly broad, and therefore, we are not going to be able to identify and locate those documents promptly…Additionally, you should know that some of the records you have requested are exempt from the definition of a public record set forth in M.G.L. c. 4, § 7(26) and we anticipate that there are also records that are protected by the attorney-client privilege. The items you requested for item #6 ‘maps or drawings…depicting the layout of the water distribution system…’ would be exempt under the Security Exemption (M.G.L. c. 4, § 7(26)(n). These maps and plans may be included in reports and therefore we would have to segregate them out before producing the reports. Without a clear understanding of why you need these records and without being certain as to what you intend to do with them, just providing the records would present a security risk.” In a follow-up letter dated March 25, 2021, the Department notes, “I anticipate that the responsive records will include attorney-client communications because I know now that at least two, and possibly 5 or even more, of our attorneys have worked on this case, in particular the Fort Devens Superfund site case and the PFAS contamination in the surrounding towns’ wells... I’m told by staff that file also includes emails created by our MassDEP attorney, Jennifer Davis. Another MassDEP attorney, Karen Crocker, indicated that she or an attorney that she supervises would also have responsive records.” Conclusion It is my determination that the Department is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Further, this office encourages Attorney Bulger and the Department 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). 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 Attorney Bulger within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4).

Kathleen Delaplain, Esq. SPR21/0658 Page 3 March 25, 2021 Please note, Attorney Bulger 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 F. Bulger, Esq.