Timothy P. Corcoran, Esq. v. Department of Environmental Protection - Central Regional Office (SPR 20232560)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 1, 2023 SPR23/2560 Anne Berlin Blackman, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection 8 New Bond Street Worcester, MA 01606 Dear Attorney Blackman: On October 25, 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 Timothy P. Corcoran. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 11, 2023, and narrowed on October 12, 2023, Attorney Corcoran requested the following records: [1] Records pertaining to public water supply #PWS 2241017-01G from 2016 to the present[;] [2] Documentation of what happened in Princeton’s Town Campus throughout 2019 relative to certain Notices of Responsibility and Administrative Consent Orders issued by MassDEP[;] [3] Documentation from/related to public water supply operator WhiteWater’s work for the town of Princeton from May 2, 2017 through May 2, 2020[;] [4] Documentation between Kevin Daoust and other MassDEP personnel handling the registration of the town of Princeton’s public water supply #PWS 2241017-01G[;] [5] Emails to, from, or about [a named individual] with regard to his work for the town of Princeton through January 1, 2021[;] [6] Any documentation indicating why [a named individual] was contacted by 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. SPR23/2560 Page 2 November 1, 2023 MassDEP upon receipt of positive PFAS test results, rather than the Princeton Town Administrator or the Board of Health, or even the Selectboard[;] [7] Any documentation indicating when the town of Princeton rather than [a named individual] was placed on formal notice by MassDEP of the contamination of the unregistered PWS[;] [8] Emails to, from, or about [a named individual] that have to do with PFAS and/or the public water supply in Princeton, from May 1, 2017 to the present[;] [9] Any documentation circa September 2019, that [a named individual] may have been copied on, or any notice to MassDEP of [a named individual] representation of the town of Princeton[;] [10] Emails to, from, or about [named individuals] with regard to PFAS and/or the public water supply in Princeton, from January 1, 2019 to the present[;] [11] given that the Polluter [town of Princeton] was Ordered (and consented thereto, twice!) to investigate this matter, specifically with regard to potential 3rd Party Liability, any such documentation provided to DEP would be greatly appreciated. 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 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;

Anne Berlin Blackman, Esq. SPR23/2560 Page 3 November 1, 2023 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 fees “for segregation and redaction costs associated with responding to a request received from Attorney Timothy P. Corcoran.” In support of its request, the Department provides the following information: [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. … Please be advised the subject matter of this records request, the release of PFAS…is the subject of active deliberation by MassDEP. MassDEP has not taken final agency action with respect to the subject matter of this records request. Therefore, any deliberations among MassDEP staff or between MassDEP attorneys and staff regarding the subject matter 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. … [T]he deliberative process exemption would extend to attorney work product produced in anticipation of or during the pendency of litigation…some of the

Anne Berlin Blackman, Esq. SPR23/2560 Page 4 November 1, 2023 records responsive to Attorney Corcoran’s request consist of MassDEP attorney work product produced in anticipation of litigation. In reviewing the records responsive to Attorney Corcoran’s request, MassDEP will need to segregate and withhold any records that consist of attorney work product produced in anticipation of litigation. … Additionally, in the potentially responsive documents, [the Department] anticipate[s] possibly finding the names of complainants or other individuals appearing together with home phone numbers, home addresses, and/or personal health information. These redactions are required by law under the Fair Information Practices Act, M.G.L. c. 66A (“FIPA”)… However, [the Department] also expect[s] to find other exempt information mixed in with potentially responsive records… [The Department] 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 ... 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); as well as potentially records that are exempt under 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 Corcoran 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: Timothy P. Corcoran, Esq.