James P. Vander Salm v. Massachusetts Department of Environmental Protection (SPR 20231707)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 28, 2023 SPR23/1707 Anne Berlin Blackman Chief Regional Counsel MassDEP Central Regional Office 8 New Bond Street Worcester, MA 01606 Dear Ms. Blackman: On July 24, 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 July 6, 2023, James P. Vander Salm, Esq. requested: [A]ll documents in DEP’s possession regarding any release or potential release of any hazardous material at the Mace Polymers & Additives, Inc. facility at 38 Roberts Road in Dudley, MA (the “Site”). This includes, but is not limited to, (a) all communications between any persons regarding any such release or potential release, (b) all documents regarding any groundwater monitoring at the Site, and (c) all documents regarding any sampling of any wells off the Site that have been sampled in connection with investigations relating to the Site. In a subsequent email to the Department dated July 10, 2023, Attorney Vander Salm modified his response to include “[a]ll documents concerning any enforcement action ever taken by DEP in connection with the Site. This includes, but is not limited to, an action taken in 2012 or 2013 for Mace’s violations of environmental regulations.” Petition to Assess Fees - Agencies 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

Anne Berlin Blackman SPR23/1707 Page 2 July 28, 2023 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 – 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). Current Petition In its July 24th petition, the Department requests permission to assess an hourly rate of $25 per hour “for segregation and redaction costs associated with responding” to Attorney Vander Salm’s request. In addition to redactions required by law under Exemption (a) of the Public Records Law, the Department states the following regarding potential segregation and

Anne Berlin Blackman SPR23/1707 Page 3 July 28, 2023 redaction of records responsive “to enforcement action taken by MassDEP regarding the Mace Polymers & Additives, Inc. facility”: [B]ecause attorney Vander Salm has requested “communications” relating to such enforcement actions, MassDEP’s IT staff have conducted a search of current and former staff email accounts and have identified 753 email messages that may be responsive to the second part of attorney Vander Salm’s request (not including attachments; some records may be duplicates). . . . One of the subjects of attorney Vander Salm’s request is a release of hazardous materials to the environment that is being actively investigated by MassDEP. Because the investigation of the release is ongoing, some of the emails and other documents that are responsive to the request contain information the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest and which therefore falls within the scope of the “investigatory exemption” provided in G.L. c. 4, §7, clause (26)(f). . . . [B]ecause MassDEP deliberations regarding the release of hazardous materials to the environment from the Mace Polymers & Additives, Inc. facility and the investigation thereof have not yet been concluded and may lead to future enforcement action, some of the emails and other documents that are responsive to the request contain information that relates to legal and policy positions being developed and premature disclosure of such materials could taint the process. Accordingly, those records fall within the scope of the “deliberative process exemption” provided in G.L. c. 4, §7, clause (26)(d). . . . [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 [Exemption (a)]. 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), (n), and (o). For example, we may find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption; personal health information and private phone numbers and home addresses, exempt under exemption (c)… 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.

Anne Berlin Blackman SPR23/1707 Page 4 July 28, 2023 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. Please note, Attorney Vander Salm 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(c), 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: James P. Vander Salm, Esq.