Meghan Portfolio v. Department of Environmental Protection (SPR 20211789)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 23, 2021 SPR21/1789 Kathleen Delaplain, Esq. Department of Environmental Protection Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 Dear Attorney Delaplain: On July 16, 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 Meghan Portfolio. Id. On July 1, 2021, Ms. Portfolio requested “all document(s), including emails on the topic of Transportation and Climate Initiative (TCI) and cap and invest, TCI, carbon tax, for the time period September 2019 to present. Please send any documents, including emails” from identified indiviuals. 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 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

Kathleen Delaplain, Esq. SPR21/1789 Page 2 July 16, 2021 Current Petition In its petition dated July 16, 2021, the Department seeks permission “to charge $2,986 for 120.7 hours of segregation and redaction time, at a rate of $25 per 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. A preliminary search found approximately 2,414 responsive records (emails with attachments & some may be duplicates) in response to the 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), (n) and (o). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b) and (n); staff private phone numbers, exempt under exemption (c); and deliberative process materials exempt under exemption (d).” In addition the Department states, “[a]s this has been a ‘collaborative effort’ there will be many Teams meeting invitations links and Zoom meeting dial-in information and passwords exempt under both the Internal Practices Exemption (b) as well as the Cybersecurity Exemption (n).” The Department further explains, “[a]s this is an ongoing matter and there is no final MassDEP decision yet on some phases of TCI policy or regulations, therefore, many of MassDEP’s emails discussing the matter may be exempt under the deliberative process exemption. Because it is multijurisdictional, there could be intra-agency policy deliberations mixed with inter-agency policy deliberations between agencies (MassDEP and CT DEEP). 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 Given the public interest served by limiting the cost of public access to the requested records, permission to charge for time spent segregating or redacting responsive records cannot be granted. However, this does not preclude the Department from charging for segregation and redaction that is required by law. Further, this office encourages Ms. Portfolio 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).

Kathleen Delaplain, Esq. SPR21/1789 Page 3 July 16, 2021 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 Ms. Portfolio 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: Meghan Portfolio