Matthew Lysiak v. Department of Environmental Protection (SPR 20211809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 27, 2021 SPR21/1809 Andrew W. Fowler, Esq. Massachusetts Department of Environmental Protection Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 Dear Attorney Fowler: I have received your petition on behalf of the Massachusetts Department of Environmental Protection (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Matthew Lysiak. G. L. c. 66, § 10(c). On July 6, 2021, Mr. Lysiak requested “[a]ll records concerning asbestos mitigation and clean-up, including (but not limited to) records pertaining to air sampling, bulk sampling, abatement, demolition and asbestos removal, reports, documents, investigative files, photos, videotape, statements (recorded, transcribed or otherwise) complaints, violations, fines and/or citations pertaining to the property located at 55 High Street Holbrook.” 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

Andrew W. Fowler, Esq. SPR21/1809 Page 2 July 27, 2021 Current petition In its July 20th petition, the Department “...seeks approval to assess a fee of $687.50 for segregation and redaction costs to respond to a public records request from Mr. Matthew Lysiak dated June 24, 2021 and received by MassDEP on July 6, 2021, concerning a commercial property at 55 High Street, Holbrook.” The Department “...anticipates that a number of potentially responsive records will contain both privileged communications and materials that are exempt from disclosure under the Public Records Law.” The Department explains that the commercial property “...was the subject of a multi-year MassDEP investigation and subsequent enforcement action concerning an asbestos abatement and other construction work.” The Department contends that “[t]he records relating to MassDEP’s enforcement actions concerning entities associated with 55 High Street may fall within the attorney-client privilege or may be attorney work product.” The Department states, “[t]hese and other records may contain materials exempt from disclosure under the Public Records Law, including but not limited to M.G.L. c. 4, § 7, cl. 26 (a), (b), (c), (d), and (f). For example, internal meeting call-in codes would be exempt under exemption (b); staff private phone numbers (especially for anything since March 2020) would be exempt under exemption (c); and deliberative process and investigative materials would be exempt under exemption (d) and (f). The Deliberative Process exemption (d) may apply to avoid premature release of MassDEP’s enforcement strategy or deliberations. The Investigatory exemption (f) may also apply to materials that could compromise investigative efforts if disclosed.” Conclusion In light of the above, I find the Department is permitted to charge for time spent segregating and redacting the requested records. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Further, this office encourages Mr. Lysiak and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii). Please note, Mr. Lysiak 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).

Andrew W. Fowler, Esq. SPR21/1809 Page 3 July 27, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Lysiak