John Brady v. Department of Environmental Protection (SPR 20212490)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 4, 2021 SPR21/2490 Kathleen Delaplain, Esq. Department of Environmental Protection Southeast Regional Office 20 Riverside Drive Lakeville, MA 02347 Dear Attorney Delaplain, On September 27, 2021, I received your petition on behalf of the 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, the Department furnished a copy of its petition to the requestor, John Brady, of King Grant Water Company. Id. On September 13, 2021, Mr. Brady requested “…all records and documents on file including emails, and all other types of communications that the DEP has involving Kings Grant Water Company from the year 1964 when this company was establlished.” 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). 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. SPR21/2490 Page 2 October 4, 2021 Current Petition In its September 27th pettion, the Department seeks approval to assess a fee for segregation and redaction costs associated with responding to a public records request from John Brady. The Department states “[a] preliminary search found 30,000 responsive records (email with attachments & some may be duplicates) and staff have indicated that there could be an additional 800 emails in response to the full request, totaling 30,800 emails.” Further, the Department posits “…that responsive records will contain both potentially privileged materials and materials exempt from disclosure under the Public Records Law.” The Department notes, “…the subject matter of this records request, the ‘Kings Grant Water Company’, is the same matter in dispute in the pending DEP administrative appeals with the Department’s Office of Appeals and Dispute Resolution, In the Matter of King’s Grant Water Company. Therefore, this records request is a discovery request for the ongoing litigation. MassDEP’s Southeast Regional Office (‘SERO’) has issued 4 Penalty Assessment Notifications (PANs) and 3 Unilateral Administrative Orders (UAOs) to Kings Grant Water Company since June 2020 for violations of the Massachusetts Drinking Water Regulations at 310 CMR 22.00.” Also, “[a]s President of Kings Grant Water Company, Mr. Brady has appealed those PANs, and those appeals are currently ongoing before the Department’s Office of Appeals and Dispute Resolution Docket Numbers: No. 2020-023, No. 2020-026, No. 2020-035, and No. 2020-038. Therefore, many of the records would be exempt under the deliberative process exemption as well as the attorney-client privileged.” The Department further expressed 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), (e) and (o). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b); staff private phone numbers, exempt under exemption (c); personal notes exempt under exemption (e) and deliberative process materials exempt under exemption (d), including attorney work product. As this is an ongoing litigation matter and there is no final MassDEP decision yet on the PAN appeals, therefore, many of MassDEP’s emails discussing the matter may be exempt under the deliberative process exemption. There could be intra-agency deliberative process communications between MassDEP staff mixed in with responsive records.” The Department estimates “that a review of 30,800 emails as well as other documents will likely be required to respond to the full request. (We note, that if we spent only 3 minutes per record reviewing each of the 30,800 records (many of which are multiple page emails with attachments, it would take 1,540 hours.) Our good faith estimate is for the segregation and redaction process as a whole… Given the volume of responsive records, it is estimated that at least 1,540 MassDEP hours will be required to review all of the records to identify attorney- client privileged information and any exempt information.” Conclusion It is my determination that given the nature of the requested records and the explanation

Kathleen Delaplain, Esq. SPR21/2490 Page 3 October 4, 2021 in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. Further, this office encourages Mr. Brady and the Department to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § l0(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). Any updated fee estimate by the District must be in compliance with this determination, the Public Records Law, and its Regulations. Please note, Mr. Brady 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: John Brady