Patrick Hannon v. Department of Environmental Protection (SPR 20210748)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 9, 2021 SPR21/0748 Irene J. Lavoie Department of Environmental Protection 20 Riverside Drive Lakeville, MA 02347 Dear Ms. Lavoie: I have received the petition of Patrick Hannon appealing the response of the Department of Environmental Protection (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 12, 2021, Mr. Hannon requested: “[a]ll written communications, letters, or records thereof between the Department and [named individuals], or any third party from July 1, 2020 to March 12, 20221; All communications, letters or records thereof between Department staff or sent to others regarding P.J. Keating, Co. from July 1, 2020 to March 15, 2021; and, All written communications, letters or records thereof between the Department staff or sent to others regarding [an identified individual].” Also, in his request, Mr. Hannon indicates that, “‘[d]ocument’ includes any written, recorded, electronic, or graphic matter, however produced or reproduced, that is or was ever in the possession, custody, or control of the [Department]. [The Department] includes all employees and contractors of the Department.” On March 15, 2021, the Department provided Mr. Hannon with a $356.00 fee estimate to provide him with the responsive records. As a result of the fee estimate, Mr. Hannon petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition to the Supervisor, Mr. Hannon asserts, “[d]ue to impacts of Covid 19 [the Department] is not allowing file reviews of public records, these file reviews have no fees, because [the Department] is not allowing file reviews of public records I am being forced to pay a large sum of money to obtain records that I should be able to inspect for free. I believe I have the right to review documents and then decide which documents I would pay a copy fee for, the 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

Irene J. Lavoie SPR21/0748 Page 2 April 9, 2021 fee should be waived by [the Department] because of Covid impacts.” Waiver of fees In his petition, Mr. Hannon asks the Supervisor to order the Department to waive the fees or arrange a file review. Mr. Hannon is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a record custodian do so. Therefore, it is not within the Supervisor’s enumerated powers to either require or approve such a waiver. Agency fees If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. 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); see also 950 C.M.R. 32.06(4). The Department’s March 25, 2021 fee estimate In its March 25th fee estimate, the Department asserts, “… a charge of $356.00 is necessary to process this production. This amount includes search, segregation and production time. Total of 18 hours of time excluding the first four hours, totaling 14 hours. Attorney at $28.68 x 2/hrs. = $57.36, Manager at $25.34 x 8/hrs. = $202.72 and program staff at $23.98 x 4/hrs. = $95.92 totaling $356.00.”

Irene J. Lavoie SPR21/0748 Page 3 April 9, 2021 It is unclear why the Department finds that 18 hours of time is necessary to produce the records responsive to this request. In its March 25th estimate, the Department indicates that it is assessing search, segregation and production time. However, the Department did not break-down its estimate for each task that is necessary to provide Mr. Hannon with the records. It remains unclear how much of the assessed 18 hours of time, before the 4 hour reduction of time required by G. L. c. 66, § 10(d)(ii), is allotted to searching for the records, and other tasks. Where Mr. Hannon requested to review the records before choosing copies of the responsive records, it is unclear how much time is necessary for searching and compiling records in order to possibly provide Mr. Hannon with the records for his review. The Department must clarify these issues. The Department is advised that it shall not assess a fee 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); see also 950 C.M.R. 32.06(4). It is unclear why the Department is assessing a fee for segregation without indicating whether any exemptions in the Public Records Law would require the Department to do so by law. To the best of my knowledge, the Department has not filed a petition to assess any fees for segregation. The Department must clarify its fee relative to segregation of the records, including how this segregation is required by law. Moreover, the Department’s fee estimate assesses hourly rates that are in excess of the maximum hourly rate of $25.00 per hour that is allowed by the Public Records Law. The Department’s estimate charges Mr. Hannon 2 hours of an attorney’s time at $28.68 per hour and a manager’s time at $25.34 per hour. 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. See G. L. c. 66, § 10(d)(ii). Further, it is unclear if the Department could search for, compile the responsive records, and subsequently schedule an appointment for Mr. Hannon to come into the Department’s office to review the records prior to copying. Conclusion Accordingly, the Department is ordered to provide Mr. Hannon with a revised fee estimate in a manner consistent with this order, the Public Records Law and its Regulations within 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. Mr. Hannon may appeal the substantive nature of the response within 90 calendar days. See 950 C.M.R. 32.08(1).

Irene J. Lavoie SPR21/0748 Page 4 April 9, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Patrick Hannon