Kevin Cassidy v. Department of Fish and Game (SPR 20211725)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 19, 2021 SPR21/1725 Victoria LaBate, Esq Records Access Officer Department of Fish and Game 251 Causeway Street, #400 Boston, MA 02114 Dear Attorney LaBate: On July 12, 2021, this office received your petition on behalf of the Department of Fish and Game (Department) requesting permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). As required by law, the Department furnished a copy of their petition to the requestor, Attorney Kevin M. Cassidy of the Earthrise Law Center. G. L. c. 66, § 10(c). On June 25, 2021, Attorney Cassidy requested: 1. All records relating or referring to the decision in 2020 by the Commonwealth of Massachusetts, through DMF to close shellfish fishing in the North and South Rivers, including but not limited to, all scientific data, reports, studies, and publications that support DMF’s decision. 2. All records relating or referring to the generation of DMF’s October 28, 2020 letter attached herewith at Exhibit A. 3. All records relating or referring to communications with the U.S. Food and Drug Administration (“FDA”), the Interstate shellfish Sanitation Conference, or any other federal or state governmental agency, regarding the 2020 decision to close shellfish fishing in the North and South Rivers. 4. All records relating or referring to FDA’s July 2019 evaluation expressing concern regarding the adequacy of the closed shellfish safety zones are the Marshfield and Scituate Wastewater Treatment Plants, DMF’s August 2019 response to that evaluation, subsequent discussions between DMF and FDA, FDA’s dilution assessments of the WWTPs provided to DMF in mid to late June 202, and DMF’s subsequent internal review and meetings with FDA. For reference, these events are all set forth in DMF’s October 28, 2020 Closure Letter (Exhibit A). 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 LaBate SPR21/1725 Page 2 July 19, 2021 5. All records relating or referring to plans, procedures, strategies DMF has pursued or is pursuing, if any, to reopen shellfishing in the North and South Rivers, including by not limited to sampling, monitoring, planned dye tests, or data gathering plans. 6. All records relating or referring to the status of the upcoming 2021 shellfish season — whether it will reopen or remain closed — in the North and South Rivers. Fee Estimates 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 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). Current Petition In its July 12th petition, the Department notes it “...identified approximately 3,250 responsive e-mail messages that may be responsive to this request. Second, it estimates an additional 20 hours is necessary for Shellfish Sanitation Program staff to search for, Commissioner compile, review, and redact other potentially relevant documents. This includes, without limitation, reports, data, publications, communications, and studies.” The Department contends that “[t]he laws requiring redaction may include the Fair Information Practices Act and will include the Massachusetts Rules of Professional Conduct and the common law attorney client privilege. Redactions to responsive records will be made in accordance with the Public Records Law exemptions as well as pursuant to statutory protection of certain information. Redactions are expected to fall into the following categories: • Attorney-client privileged information, G.L. c. 4, § 7(26)(a) • Personal information, G. L. c. 4, § 7(26)(c). • Confidential commercial fishermen reports, G.L. c. 130 § 21 • Deliberative process, G. L. c. 4, § 7(26)(d). • Public safety, G. L. c. 4, § 7 (26)(n).

Attorney LaBate SPR21/1725 Page 3 July 19, 2021 Although the Department states, “[r]edactions are expected to fall into the following categories,’’ it has not provided information regarding what records it intends to produce and why such records are likely to contain exempt information. Conclusion I find the Department has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Department from charging for segregation and redaction that is required by law. Further, this office encourages Attorney Cassidy and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii)(a municipality or agency 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 municipality or agency to produce records sought more efficiently and affordably). When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Attorney Cassidy within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin M. Cassidy, Esq.