Alyssa Harrynanan v. Massachusetts Department of Environmental Protection (SPR 20231307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 22, 2023 SPR23/1307 Kathleen Delaplain Office of General Counsel Department of Environmental Protection One Winter Street Boston, MA 02108 Dear Ms. Delaplain: On June 15, 2023, this office 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, it is my understanding that the Department furnished a copy of this petition to the requestor. Id. On May 31, 2023, Alyssa Harrynanan requested: 1. The Facility’s current permit(s) and license(s), including those issued under the Massachusetts “Air Pollution Control” regulations,1 Clean Air Act, 2 Clean Water Act, 3 and the Resource Conservation and Recovery Act, 4 including but not limited to the Facility’s Non-Major Comprehensive Air Quality Plan5; 2. Compliance documents associated with the Facility’s permit(s) and license(s), Non-Major Comprehensive Air Quality Plan, and statutory and regulatory environmental requirements, including but not limited to notices of noncompliance, notices of monitoring requirement violations, and notices of exceedances of emission limitations; 3. All records related to any inspections of the Facility by any local, state, and/or federal agencies; 4. Monitoring reports mandated by the monitoring requirements described in the Facility’s permit(s), Non-Major Comprehensive Air Quality Plan, and/or as required by local, state and federal statutes and regulations, including but not limited to reports on emission testing, sound impact testing, and gas release events; 5. All documents associated with the Facility’s Leak Detection and Repair Program, required by its Non-Major Comprehensive Air Quality Plan and 40 C.F.R. Part 60; 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

Kathleen Delaplain SPR23/1307 Page 2 June 22, 2023 6. Enforcement response documents associated with the Facility, including those documents relating to formal and informal response enforcement, including but not limited to letters of warning, notices of violation, and administrative orders; 7. Documents concerning ownership of the Facility, including documents relating to the transfer of ownership; 8. Consent agreements, court orders, administrative orders, or other orders governing the terms or status of the Facility’s compliance with its permit(s) and license(s), Non-Major Comprehensive Air Quality Plan, and statutory and regulatory environmental requirements); and 9. Any citizens’ complaints associated with the Facility. 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). 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).

Kathleen Delaplain SPR23/1307 Page 3 June 22, 2023 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). Conclusion Subsequent to the opening of this petition, in an email to this office and the Department on June 20, 2023, Ms. Harrynanan indicates that she reached out to the Department to “inquire about whether [her] fee waiver was considered and what that process looks like.” The Department responded the same day, stating that “[i]f [she] can further narrow the request …, which will likely require significant redaction, that may significantly reduce any fee.” In light of this communication, it is unnecessary to opine on the Department’s petition at this time. This office encourages Ms. Harrynanan and the Department to continue 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 to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Sincerely, Manza Arthur Supervisor of Records cc: Alyssa Harrynanan