Colman Herman v. Department of Environmental Protection (SPR 20222715)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2022 SPR22/2715 Jakarta Childers Records Response Coordinator Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Jakarta Childers: 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. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 5, 2022, Mr. Herman requested “copies of any and all internal and external communications related to [a specified] public records request.” The Department responded on November 21, 2022, providing a fee estimate. Objecting to the fees, Mr. Herman appealed, and this case was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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. 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

Jakarta Childers SPR22/2715 Page 2 December 6, 2022 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). The Department’s November 21st Response In its November 21, 2022 response, the Department estimates a total fee of $550, and provides the following information in support of its estimate: 1. Identifying the location of potential records: 5.75 hours of search time. This process involved interviewing (9) key staff to discuss what records they have, how [DEP] would conduct this search, and how [DEP] would identify the location of any responsive records. [The Department] estimate[s] this took at least 4.5 hours. This estimate also includes 1.25 hours for IT search time to locate emails. 2. Segregation Time charges: A preliminary IT search found 400 items. Therefore, at least 400 pages @ 3 minutes segregation time per page = 1200 minutes/60 = 20 hours segregation time, mainly for attorney-client privileged materials. This preliminary search estimate does not include attachments; therefore, the actual page number may be higher. But it is also possible that some items may be duplicates of items between staff, but [DEP] would not know until actually conducting the final search and reviewing the documents. 3. Production Time & Costs: 0.25 hours for records to be sorted, organized, and compiled for production. [The Department] anticipate[s] that records will be produced electronically by OneDrive and therefore there will be no mailing costs, however, this is only [the Department’s] estimate and could be subject to change if [DEP does] have to mail any records. 4. Total Cost (5.75 hours of search time + .25 hours production time + 20 hours segregation time = 26 hours total, excluding the first four hours = 22 hours at $25/hour = Total Good Faith Estimate: $550.00)

Jakarta Childers SPR22/2715 Page 3 December 6, 2022 Additionally, the Department provides the following information concerning potential segregation and redaction: [A]t least one MassDEP attorney provided legal services related to [the] original request and two attorneys were involved in the response. Almost all communications will be attorney-client privileged because they are confidential communications between DEP counsel and DEP employees undertaken for the purpose of obtaining legal advice or assistance. . . . [S]ome email records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (b), (d), (e) and (n). For example, [DEP is] likely to find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption. Additionally, because MassDEP has not yet responded to and completed [Mr. Herman’s] October 22, 2022, public records request and appeal, those documents will likely contain information exempt under the Deliberative Process Exemption (M.G.L. c. 4, § 7(26)(d)). Based on the Department’s response, it is unclear why it requires 5.75 hours of search time. 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, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). As noted above, 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)(iii); 950 C.M.R. 32.06(4). Please note that information that is “required by law” to be segregated or redacted is found in statutes that explicitly indicate that certain records or information are not public records. These statutes operate through Exemption (a) of the Public Records Law. Segregation or redaction under the attorney-client privilege is also “required by law.” Accordingly, while the Department may assess a fee for segregation and redaction pursuant to Exemption (a) and the attorney-client privilege, the Department is not permitted to assess a fee for segregation and redaction under Exemptions (b), (d), (e) and (n). It is additionally uncertain why the Department requires 3 minutes per page to segregate the records. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response must be provided to this

Jakarta Childers SPR22/2715 Page 4 December 6, 2022 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