Sofia Owen v. Massachusetts Department of Environmental Protection (SPR 20241098)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 19, 2024 SPR24/1098 Laurel A. Mackay, Esq. Deputy General Counsel for Policy and Programs Office of General Counsel Department of Environmental Protection 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Mackay: On April 12, 2024, 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 Sofia E. Owen. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 25, 2024, Attorney Owen requested the following records: From January 1, 1976 to December 31, 1977; AND from January 1, 1979 to December 31, 1979; AND from January 1, 1985 to December 31, 1987… [1] All communications between the Town of Scituate and the Massachusetts Department of Environmental Protection regarding the closure, investigation, and status of the landfill on Stockbridge Road in Scituate (“Stockbridge landfill”); AND[;] [2] All communications between DEP and the Environmental Protection Agency from January 1, 1976 to December 31, 1977 regarding the closure of the Stockbridge landfill. From January 1, 2019 to present… [1] All communications between the town of Scituate and DEP regarding the closure, investigation, and status of the inactive landfill on Stockbridge Road in Scituate (“Stockbridge landfill”)[;] [2] All permit applications from the town of Scituate to DEP regarding the Stockbridge landfill; AND[;] 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

Laurel A. Mackay, Esq. SPR24/1098 Page 2 April 19, 2024 [3] All permit comments on all of the permit applications disclosed through #2 of this list. From January 1, 1999 to December 31, 2000… [1] All DEP communication, records, proposals, and/or other materials prepared by or submitted to DEP regarding funding for the closure of the former landfill on the Driftway in Scituate; AND [2] All communications between DEP and the EPA regarding the closure of the former Driftway landfill. From January 1, 2010 to September 30, 2013… [1] All DEP communication, records, proposals and/or other materials prepared by or submitted to DEP regarding post-closure use of the former Driftway landfill; AND [2] All communications between DEP and the EPA from regarding the post- closure use of the former Driftway landfill (including but not limited to: letters of support for the Town of Scituate’s installation of a solar array on the site). 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 understanding 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.

Laurel A. Mackay, Esq. SPR24/1098 Page 3 April 19, 2024 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). Conclusion Accordingly, in light of the fact the Department has not demonstrated that it submitted its petition within ten business days after receipt of the request, permission to charge for time spent segregating or redacting responsive records cannot be granted where such segregation or redaction is not required by law. 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the Department from charging for segregation and redaction that is required by law. Sincerely, Manza Arthur Supervisor of Records cc: Sofia E. Owen, Esq.