Judith C. Knight v. Massachusetts Department of Environmental Protection (SPR 20222189)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 29, 2022 SPR22/2189 Kathleen Delaplain Office of General Counsel Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Ms. Delaplain: I have received your petition on behalf of the Department of Environmental Protection (Department/MassDEP) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. G. L. c. 66, § 10(c). Following a series of correspondence, on September 8, 2022, Attorney Judith C. Knight requested two categories of records relating to the permitting of a specified PCB dump. Petition to Assess Fees – Agencies 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 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. 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 SPR22/2189 Page 2 September 29, 2022 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 – 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 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 September 23, 2022 petition, the Department explains that a “preliminary search of eight (8) [Department] staff members’ emails and OneDrives found 3,197 potentially responsive items (counting the attachments & some may be duplicates). Because MassDEP attorneys have been involved in the underlying case since its inception, [the Department] anticipate[s] that many of the potentially responsive documents that [it] will have to look through, will be attorney-client privileged.” The Department provides the following information concerning other potential redactions: Some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (b), (c),(d), (n), and (o). For example, [the Department is] 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

Kathleen Delaplain SPR22/2189 Page 3 September 29, 2022 FIPA. The Department goes on to explain the following: As this is an ongoing litigation matter and there is no final EPA decision yet on the permit appeal, therefore, any of MassDEP’s emails discussing the matter for example with EPA, may be exempt under the deliberative process exemption. There could be intra-agency, as well as inter agency deliberative process communications between MassDEP staff or between EPA and MassDEP mixed in with responsive records. The Deliberative Process exemption (M.G.L. c. 4, § 7(26)(d)) may apply to those records and they will have to be segregated. 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 fee for the segregation and redaction of such exempt material. Conclusion Accordingly, I find the Department may assess a fee for segregation and redaction as discussed above. I understand Attorney Knight previously worked with the Department to narrow the scope of her request. This office encourages both parties to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Please note, Attorney Knight 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Judith C. Knight, Esq.