Laura Kiesel v. Department of Fish and Game (SPR 20242834)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 18, 2024 SPR24/2834 Tori LaBate, Esq. Assistant General Counsel Department of Fish and Game 251 Causeway Street, Suite 400 Boston, MA 02114 Dear Attorney LaBate: On October 15, 2024, this office received your petition on behalf of the Department of Fish and Game (Department/DFG) seeking 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, Laura Kiesel. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 30, 2024, Ms. Kiesel requested: [1.] All files pertaining to the case of Nibi the beaver, a beaver receiving rehabilitative care with Newhouse Wildlife Rescue. This includes all outgoing emails from MA DFG/Mass Wildlife, containing the combined phrases in the email of “Newhouse,” “beaver,” and “Newhouse,” “beaver,” and “release” occurring between May 1, 2023 and October 1, 2024 [;] [2.] [A]ll internal memos and emails containing the combined phrases in the email of “Newhouse,” “beaver,” and “Newhouse,” “beaver,” and “release” occurring between May 1, 2023 and October 1, 2024. 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 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

Tori LaBate, Esq. SPR24/2834 Page 2 October 18, 2024 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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 “approval to assess a fee of up to $362.50 for costs associated with responding to a public records request” and argues the following in support of its request: DFG has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This

Tori LaBate, Esq. SPR24/2834 Page 3 October 18, 2024 requires careful review and segregation of records before they are produced to a requestor. In particular, since this request is related to a legal matter, DFG will need to review and redact for attorney work product and attorney client privileged. These common law doctrines protect the written work of attorneys and communications between attorney and client. Additionally, this request is related to policy decisions that are being made by DFG and the Division of Fisheries and Wildlife and will need to be reviewed to protect the integrity of that process. Lastly, the subject of this request yielded many records from the public. The records must be reviewed and redacted to protect the privacy of individuals. Segregation and redaction of records can involve the application of multiple exemptions to the public records law to a single record. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. The fee estimates provided are for the segregation and redaction process as a whole, and in the view of undersigned counsel, cannot be split up by exemption… In correspondence enclosed with its petition the Department states: [A] significant number of these records will contain potentially privileged materials and materials exempt from disclosure under the Public Records Law and other statutes, including without limitation M.G.L. c. 4, § 7, cl. 26 (c) and (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. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without segregation or redaction. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Ms. Kiesel 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).

Tori LaBate, Esq. SPR24/2834 Page 4 October 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Laura Kiesel