Colman Herman v. Department of Conservation and Recreation (SPR 20222885)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 30, 2022 SPR22/2885 Michael Tencellent Records Access Officer Department of Conservation and Recreation 251 Causeway Street, 9th Floor Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Colman Herman appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 22, 2022, Mr. Herman requested “…all communications between the Department of Conservation and Recreation and Harvard University related to the Newell Boathouse and the Weld Boathouse for the period January 1, 2020 to the present.” Prior Appeal The requested records were the subject of a prior appeal. See SPR22/2526 Determination of the Supervisor of Records (November 22, 2022). In my November 22nd determination, I directed the Department to provide additional information regarding its fee estimate. On December 19, 2022, the Department provided a further response. Unsatisfied with the Department’s response, Mr. Herman petitioned this office and this appeal, SPR22/2885, was opened as a result. Fee Estimates 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. 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. 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

Michael Tencellent SPR22/2885 Page 2 December 30, 2022 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). 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 under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(iii); 950 C.M.R. 32.06(4). The Department’s December 19th response In its December 19, 2022 response, the Department provided clarification for the previous fee estimate stating: Part of DCR’s search time, as mentioned in the letter, involves interviewing key staff. This discussion is not based upon the organization and management of DCR’s records. Rather it is part of identifying and locating responsive records as part of the agency’s effort to address a broad records request, as staff need to be identified, contacted, advised of the nature of the request, among other tasks. In that regard, your request touched upon a number of separate offices in DCR, including the Long Term Permits and Leases, Design and Project Management, Engineering, Resource Protection, Operations and Waterways offices, the Office of General Counsel and the Commissioner’s Office, and involved staff in each of those areas. Each of these offices receives and maintains a large volume of paper and electronic records. DCR estimated a minimum 15 staff persons (likely more) that would need to search paper and electronic records, including staff searching devices for any unlikely text messages as requested, at roughly 2 hours per person. With that, our letter conservatively estimated 30 hours of search time. I trust this clarification responds how the Department estimated such costs. 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). Based on the Department’s response, it is remains unclear how the Department may assess a fee for

Michael Tencellent SPR22/2885 Page 3 December 30, 2022 “[i]nterviewing key staff” in order to locate responsive records. The Department must clarify how these tasks constitute search time. The Department must clarify these matters. Further, the Department stated that it would require 30 hours to search for responsive records. However, it remains unclear why the Department requires a total of 30 hours to search for records responsive to this request. As such, I find the Department must provide additional details regarding the tasks involved in the search process. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). Conclusion Accordingly, the Department is ordered to provide Mr. Herman with a 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