Colin Antaya v. Massachusetts Department of Agricultural Resources (SPR 20211690)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 15, 2021 SPR21/1690 Carol Szocik Records Access Officer Massachusetts Department of Agricultural Resources 251 Causeway Street, Suite 500 Boston, MA 02114-2151 Dear Ms. Szocik: On July 7, 2021, this office received your petition on behalf of the Massachusetts Department of Agricultural Resources (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, Colin Antaya of the Conservation Law Foundation. G. L. c. 66, § 10(c). On June 23, 2021, Mr. Antaya requested “[r]ecords of written, telephone, or verbal pesticide complaints filed with the Massachusetts Department of Agricultural Resources, including complaints filed with Massachusetts Pesticide Inspectors, between January 1, 2000 and June 22, 2021.” Fee estimate 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

Carol Szocik SPR21/1690 Page 2 July 15, 2021 Current Petition In it’s July 7th petition, the Department seeks “…to assess a fee of up to $2187.50 for redaction costs associated with responding to a public records request from Colin Antaya of Conservation Law Foundation.” The Department notes MDAR has conducted a preliminary search for responsive records and has “….identified approximately 1,050 responsive files spanning thousands of pages of documents over a 21-year time period.” The Department posits that “…information to be redacted may include personal information of members of the public that is protected by exemption (c). The documents being requested were submitted by members of the public, who may have included personal contact information that is exempt under exemption (c) and therefore may qualify as ‘personal data’ under FIPA. Additionally, when a complaint is linked to a person’s name and is exempt under exemption (f), the portions of the complaint describing the complainant’s observations may qualify as ‘personal data’ under FIPA.” The Department contends that it “…has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requestor.” 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. Please note, Mr. Antaya 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: Colin Antaya