Christian Uehlein v. Department of Environmental Protection (SPR 20222541)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 16, 2022 SPR22/2541 Anne Berlin Blackman, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection Central Regional Office 8 New Bond Street Worcester, MA 01606 Dear Attorney Blackman: 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). On October 24, 2022, Attorney Christian Uehlein, of Thornton Law Firm LLP, requested “public records regarding the release of per- and polyfluoroalkyl substances (PFAS) chemicals from the site at [a specified address] in Westminster, MA.” In its petition, the Department indicates that it received the request on October 25, 2022. 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 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

Anne Berlin Blackman, Esq. SPR22/2541 Page 2 November 16, 2022 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 – 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 November 8, 2022 petition, the Department seeks “approval to assess a fee ... for segregation and redaction costs associated with responding to a public records request.” The Department also indicates that it will be charging a rate of $25.00 per hour. In support of its petition, the Department explains that it “anticipate[s] that many of the responsive records may be exempt under the attorney-client privilege, the deliberative process exemption, and/or the privacy exemption.” The Department goes on to explain “that the subject matter of this records request ... is part of the same matter currently in dispute and pending at MassDEP’s Office of Appeals Dispute and Resolution (‘OADR’). . . .Therefore, any deliberations between MassDEP attorneys or staff regarding the July UAO [Unilateral Administrative Order] would be exempt still under the ‘deliberative process exemption’ provided in M.G.L. c. 4, §7, cl. (26)(d), as well as potentially subject to the attorney-client privilege.”

Anne Berlin Blackman, Esq. SPR22/2541 Page 3 November 16, 2022 The Department argues the following to support its claim for other potential exemptions: [T]he scope of this request includes records that likely contain information that identifies complainants who contacted MassDEP regarding the release of PFAS. . . . In the potentially responsive documents, for example, [MassDEP] anticipate[s] possibly finding the names of complainants appearing together with home phone numbers, home addresses, and/or personal health information. . . .A home phone number or personal health information would fall under more than one public records exemption. See M.G.L. c. 4, § 7, cl. 26(a), (c) and (o). . . . [MassDep is] likely to find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption; personal health information and private phone numbers and home addresses, exempt under exemption (c); as well as potentially records that are exempt under FIPA. 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 that, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. This office encourages Attorney Uehlein and the Department 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 Uehlein 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).

Anne Berlin Blackman, Esq. SPR22/2541 Page 4 November 16, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Christian Uehlein, Esq.