Colman Herman v. Department of Conservation and Recreation (SPR 20220034)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 20, 2022 SPR22/0034 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (DCR) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2021, Mr. Herman requested: “... copies of …leases, permits, and/or the like that have expired in which the ‘tenants’ continue to occupy and/or use the property.” DCR responded on December 21, 2021. Unsatisfied with the fee estimate response, Mr. Herman petitioned this office and this appeal, SPR22/0034, was opened as a result. Fee estimate - agencies 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 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. 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

Michael Tencellent SPR22/0034 Page 2 January 20, 2022 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). DCR’s December 21st Fee Estimate In its December 21st fee estimate response, DCR provided an estimated fee of $1,834.00. In support of the fee estimate, DCR advised, “…the total time for search, segregation and redaction [is] … 70.36 hours (101 electronic records X 10 minutes per record / 60 minutes per hour) plus (160 paper records X 20 minutes per record / 60 minutes per hour). We also estimate that we have spent 2 hours in our initial search and will spend an additional 5 hours in our final review and production, for a total of 7 hours. With this total of 77.36 hours and subtracting 4 hours pursuant to 950 CMR 32.07(2)(l)(1), we estimate the total fee to be $1,834.00 (73.36 hours at $25 per hour).” DCR explained, “… there appears to be approximately 261 responsive records. However, a significant number of these records will contain materials exempt from disclosure under the Public Records Law, including, without limitation, M.G.L. c. 4, § 7, cl. 26 (c). The exempt material will require removal/redaction prior to production of the records. Of the estimated 261 responsive records approximately 160 of those agreements exist only in paper form. These documents will have to be located and identified within our filing systems, pulled from the files, taken to the scanner, prepared for scanning (such as removing staples or other fasteners), scanned, electronically transferred from the scanner, and then reshelved in the filing system.” DCR further advised, “ … the staff costs involved are much more than $25 per hour, but the hourly rate has been limited to that sum pursuant to 950 CMR 32.07(2)(l)(3).” Although DCR has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 70.36 hours of employee time, it is unclear how DCR requires this many hours to produce responsive records. It is not clear from DCR's estimate how many hours are allocated to search, and how many hours are allocated for segregation, and redaction of the records. As such, DCR must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). In addition, DCR explained that redactions are necessary based Exemption (c). It is uncertain whether the Department is charging for an exemption that is not required by law. See G. L. c. 66, § l0(d)(iii) (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)). Therefore, I find DCR must provide information about whether the responsive records contain information that that is required by law to be segregated or redacted, as well as the applicable statutes, if any.

Michael Tencellent SPR22/0034 Page 3 January 20, 2022 For the reasons discussed above, I find DCR must revise its fee estimate. See G. L. c. 66, § 10(d). Conclusion Accordingly, DCR is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Colman Herman