Colman Herman v. Department of Environmental Protection (SPR 20222523)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 22, 2022 SPR22/2523 Rachel M. Cohen Records Access Officer Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Colman Herman appealing the response of the Department of Environmental Protection (Department/DEP) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2022, Mr. Herman requested “copies of any and all communications between the Department of Environmental Protection and Harvard University related to the Newell Boathouse and the Weld Boathouse for the period January 1, 2020 to the present.” On November 4, 2022, the Department responded. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR22/2523, was opened as a result. While this appeal was pending, the Department provided a supplemental response on November 17, 2022. 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. A fee shall not be assessed for time spent segregating or redacting records unless such 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

Rachel Cohen SPR22/2523 Page 2 November 22, 2022 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). Petitions relating to fees must be submitted to the Supervisor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). The Department’s November 4th Fee Estimate In its November 4, 2022 fee estimate, the Department estimated a fee of $137.50 that includes: 1. Identifying the location of potential records: 1 hour of search time. This process involves interviewing key staff and conducting meetings with these key staff to determine who has responsive records, how we would conduct this search and how we would identify the location of any paper and electronic records. 2. Search time for Paper Records and Electronic Records. 8 hours of staff search time. This includes staff time (4 staff members) to search for any paper or electronic records, as well as to scan any paper records. 3. Segregation Time charges: 0 hours of staff time. 4. Production Time & Costs: .5 hours for records to be sorted, organized, transferred internally and then produced. We anticipate that records will be produced electronically by OneDrive and therefore there will be no mailing costs, however, this is only our estimate and could be subject to change if we do have to mail any records. 4. Total Cost Estimate (9 hours of search time + .5 hour production time + 0 hours segregation time = 9.5 hours total, excluding the first four hours = 5.5 hours at $25/hour = Total Good Faith Estimate: $137.50) Current Appeal In his appeal, Mr. Herman argues that the Department cannot charge him for time spent locating and retrieving the three boxes of paper files that have been packed and relocated to storage. Mr. Herman states: [the Department] also wants to charge me for “interviewing key staff and conducting meetings with these key staff to determine who has the responsive records, how we would conduct the search and how we would identify the location of any paper and electronic records.” Here too DEP cannot charge me for this time. In SPR11/041, the supervisor told DCR that it “must also remove any search time that the Department assessed for meetings between Department personnel while responding to this request.

Rachel Cohen SPR22/2523 Page 3 November 22, 2022 The Department’s November 17th Supplemental Response In the Department’s November 17, 2022 response, the Department provides a revised fee estimate of $158.00 and states: 1. “Travel time” for document retrieval Mr. Herman suggests that MassDEP included travel time in its Fee Estimate. This is incorrect: MassDEP did not include any travel time in its Fee Estimate. MassDEP informed Mr. Herman that some records he sought are paper records located in archived boxes. Retrieval of archived records requires time and expenses that do not include travel time and are appropriately part of the time required to search for records. MassDEP included time for the following steps in its Fee Estimate: [1] Identification of the box(es) in which responsive records may be located by MassDEP Waterways staff; [2] Communication of the box number identified by Waterways staff to the Records Response Coordinator and Chief Records Access Officer; and [3] Completion of a vendor records retrieval form required for the vendor to retrieve the correct box from storage and provide it to Mailroom staff. All of these steps are required as part of our search for responsive records. However, at no time does any MassDEP staff travel to the records archival facility, nor is any travel included in the Fee Estimate…. 2. Time for “Meetings Between Department Personnel”. MassDEP’s Fee Estimate includes only time required for the Department to “locate and identify” who may have records, to determine what records they have, and to determine where responsive records may be located. To accomplish these tasks, MassDEP’s Records Response Coordinator must interview staff who may have responsive records and meet with them to ensure that all responsive records are identified. This is “Search Time” for which MassDEP may assess a fee pursuant to the regulations. MassDEP’s Fee Estimate does not include any time for any other type of meeting between staff…. In this matter, multiple different MassDEP staff members have necessary knowledge about the identify [sic] and location of responsive records for this request. As a result, MassDEP cannot respond to the request by having a single one staff member go to a filing cabinet, pull the responsive file, and produce it. Instead, MassDEP staff must “locate and identify” which MassDEP staff have responsive records and then work with those staff to “locate and identify” what records each may have. In this matter, MassDEP identified four staff with

Rachel Cohen SPR22/2523 Page 4 November 22, 2022 responsive records, and interviews with these staff resulted in the identification of paper records, electronic records, and text messages on a personal phone. Interviews and communications with staff are necessary for all responsive records to be located and identified, and the time required for these interviews and communications therefore is “Search Time” as defined in the regulations. The Fee Estimate included one hour of time for these interviews and communications and was not just for “for meetings between Department personnel”, as Mr. Herman characterizes it. 3. Updated Fee Estimate MassDEP’s Fee Estimate inadvertently omitted a production cost fee charged to MassDEP by its archival records vendor for retrieval of archived boxes. This fee includes a flat rate of $16.50 when we place a request to retrieve a box and $4 per box to be retrieved. In this case, MassDEP will be charged a total of $20.50 for production of the records for this request (a flat rate of $16.50 and $4.00 per box retrieved). MassDEP will charge Mr. Herman for the actual fees that it must pay to the vendor to respond to this public records request. Upon reexamination, MassDEP has also determined that only one box will need to be retrieved and not three, as indicated in our Fee Estimate. MassDEP has identified two modifications to the search time necessary to respond to this request. 1. MassDEP will reduce the search time by ½ hour. The initial Fee Estimate included time for one staff member, Rachel Cohen (Chief Records Access Officer), to perform an IT search for this request. MassDEP has subsequently determined that this IT search is not necessary, and as a result is reducing the time associated with this activity. 2. MassDEP will increase the search time by ½ hour for segregation. The Fee Estimate did not include segregation time, but MassDEP has subsequently learned that this step is necessary. Through interviewing staff previously, we knew originally that one staff member received text messages on his private phone from an outside consultant and search time would have to include time to identify and locate these. This consultant obtained our staff member’s private number prior to the staff member being employed at DEP. We subsequently learned and estimate about 10 text messages will have to be redacted for personal information (private phone number) pursuant to exemption (a); the Fair Information Practice Law (G.L. c. 66A, §§ 1-3) and privacy exemption (c). We are required by law to redact this personal data and therefore are permitted to charge segregation time for this redaction. While these two changes to search time now represent MassDEP’s best estimate

Rachel Cohen SPR22/2523 Page 5 November 22, 2022 for the time required to respond to this request, they do not change the overall time required to respond. As a result, the only change to the Fee Estimate is a result of the fee for archival record retrieval. On the basis of the changes to the Fee Estimate described above, MassDEP is hereby updating its Good Faith Fee Estimate. The new total fee calculation for Mr. Herman’s request is now $158.00, which is the sum of the $137.50 prior Fee Estimate and the additional $20.50 in vendor retrieval fees. Please be advised that the Department cannot charge a requestor for the time it takes to search for responsive records based on the organization and management of its records. Public records must be maintained and kept in a manner that allows access by the public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § l0(a); see G. L. c. 66, § l2; see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Consequently, it is unclear how the Department may assess a fee for the retrieval of a box by its vendor. Also, it is uncertain how the Department may assess a fee for “[i]nterviews and communications with staff” in order to locate responsive records. The Department must clarify how these tasks constitute search time. The Department must clarify these matters. Further, although the Department claims that it is assessing a fee for redactions required by law and redactions under Exemption (c), it is unclear how the Department can assess a fee for redactions under Exemption (c) in this matter. Under the Public Records Law, a fee may 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). I am not aware that the Department has submitted a petition under G. L. c. 66, § 10(d)(iv). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a revised response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (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, Manza Arthur Supervisor of Records cc: Colman Herman