Peter M. Vetere v. Department of Environmental Protection (SPR 20211631)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 9, 2021 SPR21/1631 Kathleen Delaplain, Esq. Department of Environmental Protection Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 Dear Attorney Delaplain: On July 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, Peter M. Vetere of Mackie Shea Durning, PC. Id. On June 18, 2021, Attorney Vetere requested: 1. All communications among, from, to, or copying MassDEP personnel concerning the revocation of the Project’s air plan approval. 2. All memoranda, notes, and other written materials generated, developed, or reviewed by MassDEP personnel concerning the revocation of the Project’s air plan approval. Petition to Assess fees 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 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. SPR21/1631 Page 2 July 9, 2021 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). Current Petition In its petition dated July 1, 2021, the Department seeks permission to charge for segregation and redaction at a rate of $25 an hour. The Department notes, “[w]e anticipate that responsive records will contain both potentially privileged materials and materials exempt from disclosure under the Public Records Law. Given the volume of material that must be reviewed and potentially segregated or redacted, in accordance with M.G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2), we have determined that a fee is necessary to process this production.” The Department states, “[w]e have conducted a preliminary search for responsive records, through beginning the process of interviewing key staff with responsive records. Staff have indicated that there could be 1,161 responsive records (mostly email with attachments & some may be duplicates) in response to the full request.” The Department posits that “…some records may contain materials exempt from disclosure under the Public Records Law, including M.G. L. c. 4, § 7, cl. 26 (a), (b), (c), (d), (e) and (o). 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); personal notes exempt under exemption (e) and deliberative process materials exempt under exemption (d), including attorney work product.” The Department further explains, “[a]s this is an ongoing litigation matter and there is no final MassDEP decision yet on the Revocation Order appeal, therefore, many of MassDEP’s emails discussing the matter may be exempt under the deliberative process exemption. There could be intra-agency deliberative process communications between MassDEP staff mixed in with responsive records. The Deliberative Process exemption (M.G.L. c. 4, § 7(26)(d)) may apply to those records and they will have to be segregated.” 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 Attorney Vetere 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

Kathleen Delaplain, Esq. SPR21/1631 Page 3 July 9, 2021 Records Law, and its Access Regulations. Please note, Attorney Vetere 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: Peter M. Vetere, Esq.