Margaret Nivison v. Department of Environmental Protection (SPR 20221399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2022 SPR22/1399 Kathleen Delaplain, Esq. Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received the petition of the Department of Environmental Protection (Department) seeking permission to access fees for time spent segregating or redacting responsive records under G. L. c. 66, § 10 (d)(iv). On June 1, 2022, Margaret Nivision, Esq. requested 13 categories of records regarding certain facilities, developments, and permit numbers since 2017. As required by law, the Department furnished a copy of its petition to the requestor. 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). 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

Kathleen Delaplain, Esq. SPR22/1399 Page 2 June 21, 2022 Fee Estimates - Agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records ----- custodian must provide the responsive records. 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). Current Petition In its June 15th petition, the Department stated: [T]he timeframe requested includes the COVID pandemic period and as such we anticipate finding staff names appearing together with home phone numbers or potentially their personal health information requiring redaction. These redactions are required by law under the Fair Information Practices Act, M.G.L. c. 66A (FIPA)…We also…anticipate some email records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (b), (c), (n) and (o). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption; personal health information and staff private phone numbers, exempt under exemption (c); as well as potentially records that are exempt under FIPA.

Kathleen Delaplain, Esq. SPR22/1399 Page 3 June 21, 2022 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, Attorney Nivision 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: Margaret Nivision, Esq.