Colman Herman v. Department of Environmental Protection (SPR 20230125)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 6, 2023 SPR23/0125 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.” Previous Appeals This request was the subject of a previous appeal. See SPR22/2715 Determination of the Supervisor of Records (December 6, 2022) and SPR22/2908 Determination of the Supervisor of Records (January 5, 2023). In my January 5th determination, I ordered the Department to revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Specifically, I noted it was unclear why the Department requires 3 minutes per page to review email correspondence. Subsequently, the Department responded on January 20, 2023. Unsatisfied with the Department’s response, and objecting to the fees, Mr. Herman further 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). 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 SPR23/0125 Page 2 February 6, 2023 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. 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). The Department’s January 20th Response In its previous responses, the Department provided a fee estimate totaling $550. The Department also explained the amount of search time required, and that it would be charging $25 per hour, or no greater than the hourly rates of the staff members with the necessary skills to search the records, and confirmed that it was charging only for segregation and redaction required by law. In its January 20, 2022 response, the Department explains the following concerning the amount of time required to review and segregate the responsive records: The Department estimates 3 minutes per email to review for attorney-client privilege and segregate documents because that has been, in [the Department’s] experience, the amount of time it takes for a careful and through review. This estimate is based on many years of fee assessments for public records requests.

Jakarta Childers SPR23/0125 Page 3 February 6, 2023 DEP typically receives an excess of 1700 public records requests annually, with many requests encompassing the review of tens of thousands of potentially responsive emails. In light of the Department’s January 20th response, and in conjunction with its previous responses, I find the Department has met its burden to explain how it has provided a reasonable fee estimate for the production of records responsive to this request. See G. L. c. 66, § 10(d) (a records access officer may assess a reasonable fee for the production of a public record). This office encourages Mr. Herman 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 of 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 the records sought more efficiently and affordably). Conclusion As set forth above, I find the Department has met its burden in responding to Mr. Herman’s request at this time. Any revision to the request would result in the requirement to issue a revised fee estimate. Accordingly, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman