Paul Benson v. Massachusetts Department of Environmental Protection (SPR 20233064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 26, 2023 SPR23/3064 David Bragg, Esq. Senior Counsel Department of Environmental Protection Office of General Counsel One Winter Street Boston, MA 02108 Dear Attorney Bragg: On December 19, 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, Paul Benson, of the Provincetown Independent. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On December 5, 2023, Mr. Benson requested: [R]ecords pertaining to DEP Waterways Chapter 91 license #14327, written for the property at 279 Commercial Street known as Provincetown Marina…: [1.] [A]ny written extensions of time to construct improvements, including public access improvements, at the property…[;] [2.] [A]ll written or emailed correspondence between DEP Waterways Division staff and the owners of 279 Commercial Street since Jan 1, 2020[;] [3.] [A]ll emailed correspondence that is internal to the DEP that contains the phrase “279 Commercial” OR “license 14327” OR “DEP014327” at any time from Jan 1, 2020 to… Dec 5, 2023[.] In its petition, the Department indicates that on December 15, 2023, Mr. Benson “narrowed the second [item]… of [his]… request” to “all written or emailed correspondence between DEP Waterways and the owners of 279 Commercial Street (Provincetown Marina) that pertains to 279 Commercial Street (Provincetown Marina) since Jan 1, 2020[.]” 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

David Bragg, Esq. SPR23/3064 Page 2 December 26, 2023 Petition to assess fees – Agencies 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 (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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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).

David Bragg, Esq. SPR23/3064 Page 3 December 26, 2023 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 Paul Benson.” In support of its request, the Department explains that it “conducted a preliminary search for records responsive to this request, including beginning the process of interviewing key staff with responsive records and running a preliminary IT search for records responsive to this request. This preliminary search found 1,024 potentially responsive items[.]” In addition to redactions required by law under Exemption (a) of the Public Records Law, the Department states the following regarding potential segregation and redaction of records responsive to Mr. Benson’s request: [T]his request is asking for records going back to 2020, which likely include emails created during the COVID-19 Pandemic. Personal data regarding our staff or potentially other people may be found in staff emails created during the COVID-19 Pandemic. In the potentially responsive documents, for example, we anticipate possibly finding staff names appearing together with home phone numbers or potentially their personal health information…. The personal data described above can be readily associated with a particular individual, likely the email sender…. [A] personal phone number or personal health information would fall under more than one public records exemption. See M.G.L. c. 4, § 7, cl. 26… (c) and (o). The Department further indicates that it expects “to find other exempt information mixed in with potentially responsive records[,]” including exemptions (b), (d), and (n). The Department states that it “may find internal meeting call-in codes, exempt under exemption (b) and (n) the cybersecurity exemption” and “[t]here could also be deliberative process materials exempt under exemption (d) (M.G.L. c. 4, § 7(26)(d)).” 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. Benson 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).

David Bragg, Esq. SPR23/3064 Page 4 December 26, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Paul Benson