Climate Investigations Center v. Department of Public Utilities - Legal Division (SPR 20212319)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 14, 2021 SPR21/2319 Mr. Patrick Houghton Department of Public Utilities, Legal Division One South Station Boston, MA 02110 Dear Mr. Patrick Houghton: I have received your petition on behalf of the Department of Public Utilities Legal Division (Department) seeking an extension of time to produce records as well as permission to charge for the assessment of time to segregate and redact responsive records. G. L. c. 66, § 10(c). As required by law, it is my understanding that the Department furnished a copy of this petition to the requestor, Climate Investigations Center. Id. In a letter dated August 26, 2021, Climate Investigations Center requested: all communications, reports, notes, and discussions pertaining to the safety of carbon dioxide (CO2) pipelines that have been built or will be built within Massachusetts as part of a national carbon capture and storage (CCS) plan being developed by the U.S. Department of Energy’s National Energy Technology Laboratory (NETL) and its Carbon Capture Program from 2003 to present. Such communications, reports, notes and discussions are sought between any agency of Massachusetts and the following Federal Agencies: • Interagency Task Force on Carbon Capture and Storage • Department of Energy Office of Fossil Energy o Carbon Storage Program o • Department of Interior Bureau of Ocean Energy Management (BOEM) o Bureau of Land Management (BLM) and o U.S. Geological Survey (USGS) o • Interstate Oil and Gas Compact Commission (IOGCC) • Department of Transportation (DOT) • Environmental Protection Agency • Ground Water Protection Council (GWPC). 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

Mr. Patrick Houghton SPR21/2319 Page 2 September 14, 2021 Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). Petition to Assess Fees 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 (Supervisor) under a petition under G. L. c. 66, § 10 (d)(iv). See G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). In rendering such a decision, the Supervisor is required to consider the following: a) the public interest served by limiting the cost of public access to the records; b) the financial ability of the requestor to pay the additional or increased fees; and c) any other relevant extenuating circumstances. G. L. c. 66, § 10(d)(iv). The statute sets out a two-prong test for determining whether the Supervisor may approve an agency’s petition to allow the agency to charge for time spent segregating or redacting records. The first prong is whether the request for records was made for a commercial purpose. G. L. c. 66, § 10(d)(iv). It is my determination that this request was not made for a commercial purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency to comply with the request. The Supervisor must consider 1) if the fee is necessary such that the request could not have been prudently completed without the redaction or segregation; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id.

Mr. Patrick Houghton SPR21/2319 Page 3 September 14, 2021 Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). 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 (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 C.M.R. 32.06(4). Current Petition The September 9, 2021 petition states that the Department “respectfully requests the Supervisor grant its petition for an extension of 20 business days to provide the responsive records to the requester and to assess a reasonable fee.” With respect to the petition for an extension of time, the Department explains that they have “conducted a preliminary search and identified approximately 115,892 items.” According to this assessment, the Department has determined it will require an “extensive amount of time to complete the request.” The Department “estimates it will expend 2,834 hours to compile and process the records.” The Department therefore requests “an extension of 20 business days to provide the responsive records.” With respect to the petition to assess fees for the production of records, the Department states that “[t]here are approximately 115,892 email communications that the Department must review and redact.” The Department explains that the responsive records “may contain personal contact information or (home address, telephone numbers, personnel information, etc.), agency memoranda relating to policy positions being developed and infrastructure located within the commonwealth, which are specifically exempt from disclosure pursuant to G.L. c. 4, §7, cl. 26(c), (d) and (n) respectively.” Therefore, the Department states that “the information must be segregated and redacted before the records are produced to the requester” and that they have “an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law.”

Mr. Patrick Houghton SPR21/2319 Page 4 September 14, 2021 The Department “estimates, conservatively and in good faith based on past experience, that [the Department] will expend an average of three minutes to review each email and to perform any necessary redactions of the records. Accordingly, the good-faith estimate of $144,975 is derived as follows: 347,676 minutes, or 5,795 hours, for reviewing and redacting the records, eight hours for compiling the records minus the first four hours equals 5,799 hours, at a rate of $25/hour, which represents the lowest hourly rate of a person capable of compiling, segregating and redacting these records.” The Department states that the “estimate represents an actual and good faith representation. The cost is necessary, reasonable and is not designed to limit, deter, or prevent access to requested public records.” Conclusion I find that in light of the above, the Department has established good cause to permit an extension of time. See G. L. c. 66, § 10(c)(i)-(iv). I hereby grant the Department an extension of 20 business days to furnish copies of records responsive to Climate Investigations Center’s request. See G. L. c. 66, § 10(c). 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. When preparing a fee estimate for the provision of the requested records the Department is advised to provide a detailed explanation to the requestor detailing why the 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 also provide the hourly rate being used and explain why it is that of the lowest paid employee with the necessary skill. The Department must provide a response to Climate Investigations Center within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Climate Investigations Center may appeal the Department’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Climate Investigations Center 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: Climate Investigations Center