Stephen Ouellette, Esq. v. Division of Marine Fisheries (SPR 20213330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 28, 2021 SPR21/3330 Jared Silva Records Access Officer Division of Marine Fisheries 251 Causeway Street Boston, MA 02114 Dear Mr. Silva: I have received your petition on behalf of the Division of Marine Fisheries (Division) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, the Division furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). On December 13, 2021, Attorney Stephen Ouellette requested ten categories of records relating to G.L. c. 130, § 38. 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 a municipality’s petition to allow the municipality 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. 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

Jared Silva SPR21/3330 Page 2 December 28, 2021 The second prong of the test is whether the fee represents an actual and good faith representation by the municipality 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. 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 In its petition, the Division states that: The [Division] has identified approximately 4,067 e-mails potentially responsive to this request…Based on the nature of this request (records relating to student permits), [the Division] expects that the records will contain information on minors and will need to be redacted for privacy. In addition, these records may also contain other private information related to applicants/permit holders protected under G.L. c. 4, §7, cl. 26(c). These records also contain material that is protected by the common law attorney-client privilege, which protects communications between a client and their lawyer that have not been shared with anyone else. Because there has been no waiver with respect to privileged material contained in these records, and because these records will contain advice from the Department of Fish and Game attorneys to [the Division], segregation and redaction are required by law.

Jared Silva SPR21/3330 Page 3 December 28, 2021 Based on the Division’s petition, I find the Division has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without redaction or segregation. See G. L. c. 66, § 10(d)(iv). To the extent the responsive records contain the exempt information as described above, the Division may assess a fee for the segregation and redaction of such exempt material. Conclusion Accordingly, to the extent that the responsive records contain the exempt information described above, the Division may assess a fee for segregation and redaction. Please note, Attorney Ouellette 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: Stephen Ouellette, Esq.