Nicole McDonald v. Department of Environmental Protection (SPR 20211222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2021 SPR21/1222 Andrew W. Fowler, Esq. Department of Environmental Protection Southeast Regional Office Lakeville, MA 02347 Dear Attorney Fowler: 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, the Department furnished a copy of their petition to the requestor, Nicole McDonald. Id. On April 29, 2021, Ms. McDonald requested various categories of records concerning two sites known as Brayton Point and Montaup in Somerset, Massachusetts. Petitions to Assess Fees - 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) 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

Andrew W. Fowler, Esq. SPR21/1222 Page 2 May 19, 2021 Current Petition In it’s petition dated May 13, 2021, the Department “…seeks permission to charge $3,500 for 140 hours of segregation and redaction time, at a rate of $25 per hour.” The May 13th petition notes that the “…request covers approximately a 41-month time-span from 2018 to the present, during which time there has been extensive site work, concurrent multi-media regulatory oversight, and enforcement…According to preliminary estimates, there could be over two thousand five hundred (2,500) responsive emails (some may be duplicates). Additionally, there could be over three hundred (300) paper records.” The Department asserts that “MassDEP’s still-ongoing enforcement actions concerning Brayton Point have generated records that will fall within the attorney-client privilege or may be attorney work product. MassDEP is responsible for preventing the dissemination of information that is protected from disclosure by law, such as attorney-client privileged communications, so the segregation and redaction process is required by law.” The Department states,“…many records may contain materials exempt from disclosure under the Public Records Law, including but not limited to M.G.L. c. 4, § 7, cl. 26 (a), (b), (c), (d), (e), (f), and (n). For example, internal meeting call-in codes would be exempt under exemption (b); staff private phone numbers (especially for anything since March 2020) would be exempt under exemption (c); and, because of the on-going enforcement case, deliberative process and investigative materials would be exempt under exemption (d) and (f). The Deliberative Process exemption (d) may apply to avoid premature release of MassDEP’s enforcement strategy or deliberations. The Investigatory exemption (f) may also apply for to materials that could compromise investigative efforts if disclosed. Furthermore, because Ms. McDonald asks for all documents relating to energy infrastructure, MassDEP may need to invoke the security exemption (n) for records such as: blueprints, plans, [etc.], which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which…is likely to jeopardize public safety.” Conclusion In light of the Department’s petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Department may assess a charge for the segregation and redaction of such exempt material. This office encourages Ms. McDonald and the Department 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

Andrew W. Fowler, Esq. SPR21/1222 Page 3 May 19, 2021 requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any updated fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations. Please note, the requestor 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: Nicole McDonald