Anthony Gargulinski v. Department of Environmental Protection - Bureau of Water Resources (SPR 20232633)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2633 Kathleen Delaplain, Esq. Office of the General Counsel Department of Environmental Protection 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Delaplain: On November 1, 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, Anthony Gargulinski. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 18, 2023, Mr. Gargulinski requested “all documents from May 4, 2023 to the present relating in any way to Point Breeze Marina in Webster, Massachusetts, including (without limitation) all documents relating to the Marina’s principal . . ., its owner WEF Properties, LLC or any other of its owners, principals, managers or interested parties.” 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, § 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

Kathleen Delaplain, Esq. SPR23/2663 Page 2 November 8, 2023 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 fees “for segregation and redaction costs associated with responding to a public records request from Anthony Gargulinski.” 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 that the subject matter of this records request; the Point Breeze Marina in Webster, Massachusetts; is currently a matter under active enforcement, and MassDEP held an enforcement action conference on October 30, 2023. Therefore, any deliberations among MassDEP attorneys and staff would be

Kathleen Delaplain, Esq. SPR23/2663 Page 3 November 8, 2023 exempt still under the deliberative process exemption still, and potentially privileged, as well. MassDEP may also have records regarding the Point Breeze Marina enforcement matter that are exempt under the investigatory exemption because if we made them public, at this point right in the middle of the enforcement matter, it may interfere with our enforcement case and therefore potentially prevent effective enforcement. … However, [the Department] also expect 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), (f), and (n). For example, [the Department is] likely to find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption; and many other on-going enforcement records exempt under the deliberative process exemption (d) and/or the investigatory exemption (f). 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, Mr. Gargulinski 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: Anthony Gargulinski