Michael J. O'Neill, Esq. v. Massachusetts Department of Environmental Protection (SPR 20230115)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 27, 2023 SPR23/0115 Christine LeBel, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection Western Regional Office 436 Dwight Street Springfield, MA 01103 Dear Attorney LeBel: 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 November 15, 2022, Attorney Michael J. O’Neill requested, among other items, the following: electronic copies of all documents in the possession of MassDEP and its employees, agents or representatives, concerning or related to the following: . . . 3. MassDEP’s site visits, inspection reports, tests required, results submitted, reports required, reports submitted, monitoring required or performed, and technical correspondence regarding HWWC from January 1, 2018 to the present; and 4. Any communications to, from, with, or copied to MassDEP concerning HWWC, with HWWC, or with any other party or person not already covered in the above, including but not limited to violation notices issued, penalties assessed, notices of responsibilities served, and proposed or issued administrative consent orders against HWWC from January 1, 2018 to the present. 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 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

Christine LeBel, Esq. SPR23/0115 Page 2 January 27, 2023 (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). 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). Conclusion The Department submitted its petition on January 19, 2023, more than ten business days after receipt of the request. In light of the fact the Department has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Sincerely, Manza Arthur Supervisor of Records cc: Michael J. O’Neill, Esq.