Sarah L. Ryley v. Department of Environmental Protection - Bureau of Water Resources (SPR 20232981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 19, 2023 SPR23/2981 Victoria Wu Program Coordinator II Bureau of Water Resources Department of Environmental Protection 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Ms. Wu: On December 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, Sarah Ryley, of the Boston Globe. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 27, 2023, Ms. Ryley requested “the following data on drinking water that exists in the Massachusetts Department of Environmental Protection’s databases, from January 1, 1995, or the earliest date available for export, through the date my data is exported: [1] Data on all drinking water quality test results from public water systems[;] [2] Public health orders and enforcement actions related to drinking water supplies[;] [3] Data on drinking water quality test results from private wells that have been submitted to MassDEP[;] [4] Database documentation[.]” 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). 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

Victoria Wu SPR23/2981 Page 2 December 19, 2023 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 from Sarah Ryley, a reporter with the Boston Globe.” In support of its request, the Department provides the following information:

Victoria Wu SPR23/2981 Page 3 December 19, 2023 [B]ecause Ms. Ryley is asking for enforcement records, some of those records potentially could be, for example, regarding ongoing enforcement, and if [we] made that information public that could make violators aware of our internal discussions, and therefore could potentially prevent effective enforcements. … [We] would have to make sure that staff have not included any enforcement sensitive information in any of those internal comments (anything exempt under either the investigatory exemption (f) or for on-going enforcement, anything exempt under the deliberative process exemption (d)). … [T]herefore, because it is regarding enforcement, [we] would have to review it before producing it because it could be exempt under either the deliberative process exemption, the investigatory exemption, potentially the privacy exemption or even the security exemption. [We] anticipate some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26, (d), (f) and potentially (c) and (n). 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, Ms. Ryley 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: Sarah Ryley