Thomas Jones v. Department of Environmental Protection (SPR 20241855)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2024 SPR24/1855 Kathleen Delaplain, Esq. Senior Counsel Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: I have received your petition on behalf of the Department of Environmental Protection (Department) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Department furnished a copy of this petition to the requestor. Id. On June 10, 2024, the Department received a records request from Thomas Jones, of the American Accountability Foundation, in which he sought “[c]opies of emails in the possession (to, from, cc, bcc) of… [a named individual]… [and] [s]enior policy making staff in [the named individual’s office] who would have worked on issues related to single use bottle purchasing prohibitions [t]hat include any of [six identified keywords]… from January 1, 2023 through present.” 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 under 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting 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 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. SPR24/1855 Page 2 July 1, 2024 purpose. The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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; 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 June 25th petition, the Department requests permission to assess fees for “segregation and redaction time, at a rate of $25 per hour” and states that the “preliminary IT search [it conducted] for emails responsive to this request… located at least 1183 emails, which at a minimum is 1183 pages of records.” In addition to segregation and redaction required by law under Exemption (a) of the Public Records Law, the Department explains the following in support of its request: [W]e… expect to find other exempt information mixed in with potentially responsive records. Therefore, we seek permission to charge fees for employee time spent on segregating and redacting records for reasons other than pursuant to exemption (a)…. We anticipate some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (n). For example, we are likely to find information exempt pursuant to exemption (n),

Kathleen Delaplain, Esq. SPR24/1855 Page 3 July 1, 2024 the cybersecurity exemption (Zoom and Teams meeting links, ids, and passcodes); personal health information, private phone numbers and information in emails exempt under exemption (c)…. We also anticipate finding information exempt under the deliberative process exemption, M.G.L. c. 4, § 7, cl. 26 (d). There is pending legislation right now regarding single use plastics that we are commenting on and some of these emails may relate to that or other internal policy deliberations. The Department further explains that it “cannot find this exempt 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.” 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. Jones 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: Thomas Jones Peter C. Mulcahy, Esq.