Jed M. Nosal, Esq. v. Department of Environmental Protection (SPR 20232416)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2023 SPR23/2416 Karen L. Crocker, Esq. Chief Bureau Counsel Bureau of Water Resources Massachusetts Department of Environmental Protection 100 Cambridge Street Boston, MA 02114 Dear Attorney Crocker: On October 11, 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 Jed Nosal, of Womble Bond Dickinson (US), LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 25, 2023, Attorney Nosal requested the following records: [1] All documents and communications pertaining to the 2020 renewal of the Surface Water Discharge Permit issued by Massachusetts Department of Environmental Protection [;] [2] Any potential modifications to the 2020 permit, including, but not limited to, the application to modify the 2020 permit filed by Holtec with MassDEP on or about April 4, 2023[.] 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 public interest served by limiting the cost of public access to the records; b) the financial ability 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

Karen L. Crocker, Esq. SPR23/2416 Page 2 October 17, 2023 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 records request from Attorney Jed Nosal” In support of its request, the Department provides the following information:

Karen L. Crocker, Esq. SPR23/2416 Page 3 October 17, 2023 [The Department] ha[s] conducted a preliminary IT search for records responsive to this request, and the results are voluminous, reflecting many years’ worth of work by tens of MassDEP staff members. The preliminary search of 32 MassDEP staff members’ emails, Teams files, and OneDrive files found 36,744 responsive items, including attachments. We have also identified approximately 3,000 potentially responsive paper records. … [B]ecause MassDEP attorneys have been involved in the 2020 permit matter since at least 2012, we anticipate that many of the potentially responsive documents that we will have to look through will be attorney-client privileged. Additionally, we anticipate that many of the responsive records will be exempt from production as deliberative… … Please be advised that most of the subject matter of the request is subject to ongoing deliberation by the Department…therefore, any deliberations between MassDEP attorneys or staff with EPA attorneys or staff would be exempt under the deliberative process exemption still, and potentially privileged, as well. MassDEP will also have internal deliberations. … [The Department] also anticipate that responsive records may contain materials exempt from disclosure under other provisions of the Public Records Law, including M.G.L. c. 4, § 7, cl. (26) (a), (b), (c), (d), (n), and (o). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption. Also, for any emails during the COVID-19 pandemic, we may find personal health information and staff private phone numbers, exempt under exemption (c) and (a) pursuant to the Fair Information Practices Act, M.G.L. c. 66A (FIPA)). 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. Please note, Attorney Nosal 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).

Karen L. Crocker, Esq. SPR23/2416 Page 4 October 17, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Jed Nosal, Esq.