Veronica Vasquez v. Massachusetts Department of Environmental Protection (SPR 20220520)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 9, 2022 SPR22/0520 Kathleen Delaplain, Esq. Office of the General Counsel Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received your petition on behalf of the Massachusetts 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, it is my understanding that the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). In a letter dated February 16, 2022, Veronica Vazquez requested “[a]ll Documents about the MassDEP Legacy Firefighting Foam Take-Back Program.” In a follow up letter dated February 28, 2022, Ms. Vazquez narrowed her request to “[a]ll documents, reports, plans, logs, lists about the fuel-blending facility in Ohio that received the Firefighting Foams for destruction in the Refuse Derived Fuel Incinerators; The total volume of legacy foam identified, removed and destroyed and where it came from; Documents evidencing the cost to remove and destroy legacy foam and Class B Foam; and Any master list of locations, volumes, container sizes, and photographs related to the Program.” Petitions 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). 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. SPR22/0520 Page 2 March 9, 2022 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. 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 dated March 3, 2022, the Department seeks “…permission to charge fees for employee time spent on segregating and redacting records for reasons other than attorney- client privilege.” The Department posits that “[t]he preliminary search of a retired staff member’s emails who lead the Legacy Firefighting Foam Take-Back Program ('Program’) found 1,200 potentially responsive emails (including attachments & some may be duplicates).”

Kathleen Delaplain, Esq. SPR22/0520 Page 3 March 9, 2022 The Department notes, “[i]n March of 2021, MassDEP had a previous records request regarding the Program for which we also provided responsive emails specifically regarding the legacy foam disposal. I reviewed those emails and noticed that many were more than one page long and many also had attachments that were more than one page long. Mixed in with those emails I also found medical information. In the process of responding to that previous records request, I also communicated with the Program’s lead, creating many new attorney-client privileged records, as I had several factual questions for staff about the Program to determine which records were public or required redacting.” With respect to Ms. Vasquez’s request, the Department anticipates “…some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (b), (c), and (o). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b); medical information and staff private phone numbers, exempt under exemption (c); as well as potential records that are privileged under the attorney-client privilege.” Conclusion In light of the Department’s petition, I find the Department 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 Department may assess a charge for the segregation and redaction of such exempt material. Please note, Ms. Vazquez 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: Veronica Vazquez Jakarta Childers