Logan Ping v. Department of Environmental Protection (SPR 20211386)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 9, 2021 SPR21/1386 Kathleen Delaplain, Esq. Department of Environmental Protection Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 Dear Attorney Delaplain: On June 1, 2021, this office 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. Id. In this matter, on May 13, 2021 Logan Ping requested “…copies of financial statements and other documents in the possession of Massachusetts Department of Environmental Protection concerning how Massachusetts Department of Environmental Protection has used/dispersed funds from the 2010 Tronox Environmental Settlement Agreement and the 2014 Tronox Bankruptcy.” Petition 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 CMR 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

Attorney Delaplain SPR21/1386 Page 2 June 9, 2021 Current Petition In its petition dated June 1, 2021, the Department seeks “…permission to charge $7,500 for 300 hours of segregation and redaction time, at a rate of $25 per hour.” The Department notes, “[w]e have conducted a preliminary search for responsive records, through beginning the process of interviewing key staff with responsive records. Staff have estimated that there could easily be over 6,000 responsive records (some may be duplicates) in response to the full request.” The Department further notes, “[w]e anticipate some records may contain materials exempt from disclosure under the Public Records Law, including M.G. L. c. 4, § 7, cl. 26 (b)(c), (d), and (n). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b); staff private phone numbers (especially for anything since March 2020), exempt under exemption (c); and possibly other deliberative process materials, mixed in with responsive documents. Emails may contain on-going deliberations regarding the Consent Decree for the matter, which is currently being finalized. The ‘financial statements and quarterly/annual reports discussing the receipt and disbursement of funds from the Settlements; e-mail, correspondence, and reports concerning the use of Settlement funds at the sites’ requested may contain, for example, MassDEP financial account information that is exempt under the Cybersecurity Exemption (M.G. L. c. 4, § 7(26)(n)).” The Department posits that “[g]iven the sheer volume of responsive records, it is estimated that at least 300 MassDEP hours will be required to review all the records to identify attorney-client privileged information and any exempt information. Based on the foregoing, we are requesting permission to charge fees for segregation and redaction in the amount of $7,500.” 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. Further, this office encourages Mr. Ping 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 or municipality 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 or municipality to produce records sought more efficiently and affordably). Any fee estimate by the Department must be in compliance with this determination, the Public Records Law, and its Access Regulations.

Attorney Delaplain SPR21/1386 Page 3 June 9, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Logan Ping