Christian Uehlein v. Department of Environmental Protection - Central Regional Office (SPR 20232393)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2393 Anne Berlin Blackman, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection 8 New Bond Street Worcester, MA 01606 Dear Attorney Blackman: On October 10, 2023, this office received your petition on behalf of the Department of Environmental Protection (Department) requesting permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, it is my understanding that the Department furnished a copy of the petition to the requestor, Attorney Christian Uehlein, of Thornton Law Firm, LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 25, 2023, and narrowed on October 6, 2023, Attorney Uehlein requested the following records: [1] Reports summarizing the results of testing MNF’s composting feedstocks/ intermediate piles/products for PFAS concentration, received after November 2022[;] [2] Communications, and correspondence to date between MassDEP and the responsible parties (entities that have received an NOR for RTN 1-0021866 and 2-0022297), that includes any documentation received by MassDEP from the responsible parties; and documentation in MassDEP’s possession regarding the responsible parties for the cited RTN’s[.] Petition to assess fees – Agencies A fee shall not 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. 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 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, Esq. SPR23/2393 Page 2 October 16, 2023 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 a municipality’s petition to allow the municipality to charge for time spent segregating or redacting records or to charge in excess of $25 an hour for the provision of public 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 municipality 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 or fee in excess of $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 petition, the Department requests permission to assess an hourly rate of $25.00 per hour “for segregation and redaction costs associated with responding to a request received from Attorney Christian Uehlein” In support of its request, the Department provides the following information:

Anne Berlin Blackman, Esq. SPR23/2393 Page 3 October 16, 2023 [The Department] cannot find this information simply by performing an electronic search, but rather each potentially responsive record must be carefully reviewed, analyzed, and redacted if necessary, line by line. … [B]ecause MassDEP attorneys have been involved in the underlying case involving RTN 2-0021866 since its inception, we anticipate that many of the potentially responsive documents that we will have to review will be attorney- client privileged. Additionally, we anticipate that many of the responsive records may be exempt under the attorney-client privilege, the deliberative process exemption, and/or the privacy exemption… … Please be advised the subject matter of this records request, the release of per-and polyfluoroalkyl substances (“PFAS”)…is part of the same matter currently in dispute and pending at MassDEP’s Office of Appeals Dispute and Resolution ad the following matter: In the Matter of Massachusetts Natural Fertilizer Company, Inc., OADR Docket Number: 2022-012…therefore, any deliberations between MassDEP attorneys or staff regarding the July UAO would be exempt still under the “deliberative process exemption” provided in M.G.L. c. 4, § 7, cl. (26)(d), as well as potentially subject to attorney-client privilege. … [A]dditionally, the scope of this request includes records that likely contain information that identifies complainants who contacted MassDEP regarding the release of PFAS from Mass Natural’s facility. However, we 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. 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.

Anne Berlin Blackman, Esq. SPR23/2393 Page 4 October 16, 2023 Please note, Attorney Uehlein 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: Christian Uehlein, Esq.