Kevin Cassidy v. Department of Environmental Protection (SPR 20232204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 21, 2023 SPR23/2204 Allison Colton, Esq. General Counsel Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Colton: On September 15, 2023, this office received your petition on behalf of the Department of Environmental Protection (Department) seeking permission to charge for time spent segregating or redacting responsive records. 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. G. L. c. 66, § 10(d)(iv). On August 31, 2023, Attorney Kevin Cassidy requested various records relating or referring to two plant species. 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. 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

Allison Colton, Esq. SPR23/2204 Page 2 September 21, 2023 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 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 September 15th petition, the Department argues the following in support of its request to charge for segregation and redaction under Exemption (d): The request seeks, among other things, information that is being reviewed by the Department as part of an ongoing permitting process, namely, the FirstLight hydroelectric facility’s 401 Water Quality Certification and re- licensing process. We have conducted a preliminary search for records responsive to this request, including beginning the process of interviewing key staff with responsive records and conducting an IT search of the email accounts of former MassDEP staff who worked on the FirstLight hydroelectric facility’s 401 Water Quality Certification and re-licensing process. This preliminary search found approximately 142 potentially responsive items. As this is an ongoing re-licensing matter, there could be intra-agency

Allison Colton, Esq. SPR23/2204 Page 3 September 21, 2023 deliberative process communications between MassDEP staff mixed in with responsive records, and, thus, the Deliberative Process exemption (M.G.L. c. 4, § 7(26)(d)) may apply to those records and they will have to be segregated. 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. Conclusion Accordingly, it is my determination that given the nature of the requested records and the explanation in its petition, the Department is permitted to charge for time spent segregating and redacting the requested records. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. See G. L. c. 66, § 10(b)(vii). Please note Attorney Cassidy 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(d)(iv)(4), l0A(c). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Cassidy, Esq. Rachel Cohen