James P. Vander Salm v. Massachusetts Department of Environmental Protection (SPR 20243457)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2025 SPR24/3457 Anne Berlin Blackman, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Blackman: On December 30, 2024, this office received your petition on behalf of the Massachusetts Department of Environmental Protection (Department) 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, James P. Vander Salm, Esq. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On December 17, 2024, Attorney Vander Salm requested the following: 1. All documents concerning any release or potential release of any hazardous material at the Mace Polymers & Additives, Inc. (“Mace”) facility at 38 Roberts Road in Dudley, MA (the “Site”). This includes, but is not limited to, (a) all communications between any persons regarding any such release or potential release, (b) all documents regarding any groundwater monitoring at the Site, and (c) all documents regarding any sampling of any wells off the Site that have been sampled in connection with investigations relating to the Site; and 2. All documents involving or mentioning any of the following persons or entities in connection with the Site: (a) [identified individual]; (b) [identified individual]; (c) any other individual acting as Mace President; and (d) Mace’s parent company, Protex International, of Paris, France. In an email sent to the Department on December 31, 2024, Attorney Vander Salm objected to the Department’s petition. 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

Anne Berlin Blackman, Esq. SPR24/3457 Page 2 January 3, 2025 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 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).

Anne Berlin Blackman, Esq. SPR24/3457 Page 3 January 3, 2025 Current Petition In its petition, the Department requests permission to charge for time spent segregating or redacting responsive records. In support of its petition, the Department provides the following information: the scope of this request includes records that may contain information that identifies complainants who contacted MassDEP regarding noncompliance at the Mace Polymers & Additives, Inc. facility. In the potentially responsive documents, for example, we anticipate possibly finding the names of complainants appearing together with home phone numbers, home addresses, and/or personal health information. These redactions are required by law under the Fair Information Practices Act, M.G.L. c. 66A (“FIPA”). FIPA prohibits the disclosure of “personal data.” The personal data described above can be readily associated with a particular individual, likely the email sender. While FIPA contains an exception for information that is considered a “public record”, emails are not the type of record that are necessarily a public record because any number of exemptions to the Public Record Law could always apply. In fact, a home phone number or personal health information would fall under more than one public records exemption. See M.G.L. c. 4, § 7, cl. 26(a), (c) and (o). We cannot find this 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. Because MassDEP must ensure that personal data is not disclosed, the segregation and redaction process is required by law. Furthermore, MassDEP may need to redact certain responsive records to protect from disclosure information that is exempted by statute from the definition of public records. One of the subjects of attorney Vander Salm’s request is a release of hazardous materials to the environment that is Letter to Supervisor Arthur Fee Petition re Vander Salm Request December 30, 2024 Page 3 of 4 being actively investigated by MassDEP. Because the investigation of the release is ongoing, some of the emails and other documents that are responsive to the request contain information the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest and which therefore falls within the scope of the “investigatory exemption” provided in G.L. c. 4, §7, clause (26)(f). Finally, because MassDEP deliberations regarding the release of hazardous materials to the environment from the Mace Polymers & Additives, Inc. facility and the investigation thereof have not yet been concluded and may lead to future enforcement action, some of the emails and other documents that are responsive to the request contain information that relates to legal and policy positions being developed and premature disclosure of such materials could taint the process. Accordingly, those records fall within the scope of the “deliberative process

Anne Berlin Blackman, Esq. SPR24/3457 Page 4 January 3, 2025 exemption” provided in G.L. c. 4, §7, clause (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. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Attorney Vander Salm may appeal the Department’s fee estimate within ninety days. Please note, Attorney Vander Salm 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: James P. Vander Salm, Esq.