Margaret E. Sheehan, Esq. v. Department of Fish and Game (SPR 20211961)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2021 SPR21/1961 Victoria LaBate, Esq. Department of Fish and Game 251 Causeway Street, Suite 400 Boston, MA 02114 Dear Attorney LaBate: On August 2, 2021, this office received your petition on behalf of the Department of Fish and Game (Department) seeking permission to charge for time spent segregating or redacting responsive records. See G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of their petition to the requestor, Attorney Margaret E. Sheehan. G. L. c. 66, § 10(c). On July 19, 2021, Attorney Sheehan requested various records concerning “…MassWildlife actions relating or referring to the Massachusetts Endangered Species Act and regulations with regard to land owned, occupied or operated by A.D. Makepeace Company, its affiliates, subsidiaries, or LLCs (ADM) for the period from March 31, 2021 to the present.” 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). 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

Victoria LaBate, Esq. SPR21/1961 Page 2 August 9, 2021 Current Petition In its August 2nd letter, the Department “…petitions the Supervisor of Public Records for approval to assess fees for costs associated with responding to a public records request submitted by Meg Sheehan on behalf of Save the Pine Barrens.” The Department notes it “…received this public records request on July 19, 2021 and promptly began search and segregation. DFW’s initial search indicated that there were approximately 1,750 potentially relevant e-mails. Some of these emails are likely to contain information that is attorney client privileged, deliberative and/or covered by the privacy exemption under the public records law at M.G.L. c. 4 § 7 (26) (c) and (d). Accordingly, these records must be reviewed, segregated and redacted before the emails are produced to a third party such as the requestor.” The Department further notes that, “[g]iven the volume of responsive records requiring review, DFG will need to assess a good faith estimate for the cost of production. The cost estimate contemplates that each e-mail requires an average of 3 minutes to review. Some e-mails are anticipated to be brief, but others will include extensive chains of communication and or attachments. With around 1,750 e-mails currently segregated as being potentially responsive, DFG is petitioning the Supervisor of Public Records to allow for a good faith cost estimate of $2,087.50 for this public records request.” Although the Department states some of these emails are likely to contain information that is “…attorney client privileged, deliberative and/or covered by the privacy exemption,” 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. 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 Sheehan 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: Margaret E. Sheehan, Esq.