Christopher Michaud v. Department of Environmental Protection (SPR 20222790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2022 SPR22/2790 Rachel Cohen Records Manager Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Ms. Cohen: On December 5, 2022, this office received your petition on behalf of the Department of Environmental Protection (Department/DEP) 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). On November 18, 2022, Christopher Michaud requested: [1] Names of individuals on the Nitrogen Sensitive Area Subcommittee of MassDEP[;] [2] Names of individuals and titles or organizations or department they represent by being a member to the Nitrogen [S]ensitive Area Subcommittee of MassDEP[;] [3] Notes of all members for all meetings of the Nitrogen Sensitive Area Subcommittee of MassDEP[;] [4] Notes shall include handwritten, typed, electronic of any form and emails between members and anyone else and shall not be limited to members who are state employees[;] [5] Any documents from the subcommittee or the members regarding the proposed draft regulations as they pertain to 310 CMR 15.00 and 314 CMR 21.00[.] 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

Rachel Cohen SPR22/2790 Page 2 December 13, 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). Current Petition In its December 5th petition, the Department explains: DEP estimates that 1,000 documents are potentially responsive to the request (counting the attachments & some may be duplicates). Because MassDEP

Rachel Cohen SPR22/2790 Page 3 December 13, 2022 attorneys have been involved in the drafting of the regulations cited by Mr. Michaud, we anticipate that some of the potentially responsive documents that we will need to review will be privileged attorney-client communications. Additionally, we anticipate that if there are any responsive records, they may be exempt as either attorney-client privileged and/or subject to the deliberative process exemption, and therefore we are providing you with this petition…. Please be advised that the subject matter of this records request involves draft revisions of Title 5 and the Watershed Permit regulations currently posted on the website and currently out for public comment at [identified weblinks.] As the proposed regulations are still in draft form, any deliberations between MassDEP attorneys and/or staff relating to the development of the regulations would be exempt under the deliberative process exemption, and may be subject to the attorney-client privilege as well. These MassDEP Deliberations are internal deliberations. MassDEP is responsible for preventing the dissemination of information that is protected from disclosure by law, such as attorney-client privileged communications. At least two MassDEP attorneys have been involved in this matter and have been providing legal services for the Department. Therefore, there are attorney-client privileged communications potentially responsive to this request. We cannot find this information simply by performing an electronic search, but rather each potentially responsive record must be carefully reviewed, analyzed, and redacted, if necessary, line by line. Because MassDEP must ensure that attorney-client privileged communications are not disclosed, the segregation and redaction process is required by law. Additionally, this request is asking for records going back to 2014, which likely include emails created during the COVID-19 Pandemic. Personal data regarding our staff or potentially other people may be found in emails created during the COVID-19 Pandemic. In the potentially responsive documents, for example, we anticipate possibly finding staff names appearing together with home phone numbers or potentially their personal health information. These redactions are required by law under the Fair Information Practices Act, M.G.L. c. 66A (FIPA). FIPA prohibits the disclosure of “personal data.” The personal data described above can be readily associated with a particular individual, likely the email sender. While FIPA contains an exception for information that is considered a “public record”, emails are not a public record because any number of exemptions to the Public Record Law could always apply. In fact, 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). We cannot find this information simply by performing an electronic search, but rather each potentially responsive record must be carefully reviewed, analyzed, and redacted if necessary, line by line. Because MassDEP must ensure that personal data is not

Rachel Cohen SPR22/2790 Page 4 December 13, 2022 disclosed, the segregation and redaction process is required by law…. [W]e also expect to find other exempt information mixed in with potentially responsive records. Therefore, we seek permission to charge fees for employee time spent on segregating and redacting records for reasons other than pursuant to the attorney-client privilege, exemption (a) and FIPA. We anticipate 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), and (n). 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. Again, as the regulations are still draft, any of MassDEP’s internal emails discussing the draft regulations, may be exempt under the deliberative process exemption. There will likely be intra-agency, deliberative process communications between MassDEP staff responsive to this request. The Deliberative Process exemption (M.G.L. c. 4, § 7(26)(d)) may apply to those records and they will have to be segregated. . . . Because the regulations are still draft, any potentially responsive documents involving these draft regulations are likely still deliberative because the Department has not yet made a final decision on them yet and is currently seeking public comment on them. Depending on the comments received, the regulations may change. Therefore, they and any emails discussing them may involve unresolved legal and policy matters, and therefore they should not be disclosed. 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. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. Michaud 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).

Rachel Cohen SPR22/2790 Page 5 December 13, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Christopher Michaud Benjamin J. Ericson, Esq. Victoria Wu