Laura Nishimura v. Department of Environmental Protection (SPR 20221461)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 30, 2022 SPR22/1461 Kathleen Delaplain, Esq. Office of General Counsel Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: On June 23, 2022, this office 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, 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 June 9, 2022, Attorney Laura M. Nishimura of Johnson & Bell Trial Lawyers requested “…the production of copies of public records relating to testing for per- and polyfluoroalkyl substances (PFAS) in pesticides registered for use in Massachusetts.” Specifically: From January 1, 2020 to the present, any and all tests, reports, notes, press releases, studies, recalls, measurements, data, studies, analysis, and other materials generated, obtained, or compiled by the Massachusetts Department of Environmental Protection relative to PFAS in pesticide products. From January 1, 2020 to the present, any and all tests, reports, notes, measurements, data, studies, analysis, and other materials generated, obtained, or compiled by the Massachusetts Department of Environmental Protection relative to PFAS detected in containers used to store pesticide products. 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). 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. SPR22/1461 Page 2 June 30, 2022 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 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).

Kathleen Delaplain, Esq. SPR22/1461 Page 3 June 30, 2022 Current Petition In its June 23rd petition, the Department seeks “…permission to charge fees for employee time spent on segregating and redacting records for reasons other than pursuant to exemption (a), FIPA and the attorney-client privilege.” The Department notes, “[w]e have conducted a preliminary IT search for records responsive to this request. The preliminary search searched four DEP staff members’ emails and found 1239 potentially responsive emails, Teams records, OneDrive records (Some may be duplicates.) This calculation does not include attachments).” The Department anticipates that “…some 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 (especially if any staff had COVID) and staff private phone numbers, exempt under exemption (c); as well as potentially records that are exempt under FIPA.” 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 the requestor 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), l0A(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura M. Nishimura, Esq.