Bill Shein v. Department of Environmental Protection (SPR 20252554)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2025 SPR25/2554 Kathleen Delaplain, Esq. Senior Counsel Office of General Counsel Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Delaplain: On August 27, 2025, this office received your petition on behalf of the Department of Environmental Protection (Department/MassDEP) 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, Bill Shein, of The Berkshire Argus. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 13, 2025, Mr. Shein requested eight (8) categories of records “[f]rom January 1, 2024 to the present concerning MassDEP’s investigation of activities at the brownfield site known as Carpenter’s Variety . . . and MassDEP’s discussions with the Town of Great Barrington regarding a lien held by the Commonwealth on a 0.41 arce parcel at [a specified address] for costs related to remediation activities.” 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 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. SPR25/2554 Page 2 September 3, 2025 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. Current Petition In its petition, the Department seeks “approval to assess a fee of $1,213.75 for segregation and redaction costs associated with responding to a public records request from Bill Shein, Editor, of The Berkshire Argus, received by MassDEP on August 13, 2025.” G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In support of its request, the Department provides the following information: [We] have conducted a preliminary search for responsive records, through beginning the process of interviewing key staff with responsive records. The preliminary search and discussion with staff have indicated that there could be at least 971 responsive records in response to the full request. We anticipate that responsive records will contain both potentially privileged materials and materials exempt from disclosure under the Public Records Law.

Kathleen Delaplain, Esq. SPR25/2554 Page 3 September 3, 2025 [We] seek permission to charge fees for employee time spent on segregating and redacting records for reasons other than attorney-client privilege. We anticipate some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (b), (d), (e), (f) and (n). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b) and (n); personal notes exempt under exemption (e), Exemption (f) investigatory materials, and on-going deliberations exempt under exemption (d), including attorney work product. [A]s there is on-going litigation regarding the town’s lien, and there is no final MassDEP decision yet on any MassDEP potential enforcement related to the site’s status more generally as an M.G.L. c. 21E site, therefore, many of MassDEP’s emails discussing the matter may be exempt under the deliberative process exemption (d) and Exemption (f) (investigatory materials). There could be intra-agency deliberative process communications between MassDEP staff. The Deliberative Process exemption (M.G.L. c. 4, § 7(26)(d)) may apply to those records and they will have to be segregated. Based on the information provided in its fee 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 segregation or redaction. 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 redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Further, I encourage the parties to communicate to enable the Department to provide records in an efficient and affordable manner. Please note, Mr. Shein 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: Bill Shein