Kelsey A. Taber, Esq. v. Department of Environmental Protection (SPR 20252633)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2025 SPR25/2633 Kathleen Delaplain, Esq. Senior Counsel Department of Environmental Protection 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Delaplain: On September 5, 2025, this office 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(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). As required by law, I understand that the Department furnished a copy of this petition to the requestor, Kelsey A. Taber, Esq. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 15, 2025, Attorney Taber requested the following records: Naval Air Station South Weymouth, South Weymouth, MA 02190 (hereinafter “NAS South Weymouth”) (a) Any records or documents pertaining to the practices, safety procedures, construction, maintenance, rebuilding, and/or repair/ remodeling work at the location above, which in any way involved asbestos. (b) All records or documents identifying all persons, contractors, or other entities involved in the safety practices, safety procedures, construction, maintenance, rebuilding, and/or repair/remodeling work at NAS South Weymouth, which in any way involved asbestos. (c) All records or documents pertaining to asbestos cleanup work or industrial chemical cleanup work performed at NAS South Weymouth. (d) All records or documents regarding research, investigations, air testing, reports and/or study data from air testing and air sampling which measured the amount of asbestos fibers either in the ambient air and/or released when asbestos and/or asbestos-containing products were used, machined, operated, or otherwise disturbed at NAS South Weymouth. (e) All records, documents, or letters to or from the Massachusetts Department of Environmental Protection pertaining to warnings, citations, or violations at NAS South Weymouth, which in any way involved asbestos. 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. SPR25/2633 Page 2 September 11, 2025 (f) All records or documents, including, but not limited to reports, studies, and/or secondary research provided by the Massachusetts Department of Environmental Protection which addressed the issue of health hazards created by or associated with exposure to asbestos at NAS South Weymouth. (g) All written communication from the Massachusetts Department of Environmental Protection at NAS South Weymouth, which in any way involved asbestos. (h) All records or documents identifying [a named individual]’s involvement in the practices, safety procedures, construction, maintenance, rebuilding, and/or repair/remodeling work at the location above, which in any way involved asbestos. In its petition, the Department notes that the request was “received by mail by MassDEP on August 21, 2025,” and further notes that on August 26, 2025, Attorney Taber clarified the date range of the request as “1960 through the 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 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).

Kathleen Delaplain, Esq. SPR25/2633 Page 3 September 11, 2025 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 requests to assess fees “for segregation and redaction costs associated with responding to a public records request.” The Department provides the following information in support of its petition: We have conducted a preliminary search for responsive records, beginning the process with interviewing key staff that may have potentially responsive records and doing a preliminary information technology (IT) search. The preliminary IT search and discussions with staff have indicated that there are at least 6552 responsive emails in response to the full request. . . . Because emails may contain personal data (like private citizen email addresses, private citizen’s phone numbers or even private health information) some of the responsive emails may have information exempt under both the privacy exemption as well as exemption (a) and under FIPA. FIPA prohibits the disclosure of “personal data”, and we are required by law to redact this information. We anticipate that there may be some exempt information in these emails requiring redaction under both exemption (a) or exemption (c) and therefore we are providing you with this petition. Given the potential volume of material that must be reviewed and potentially segregated or redacted, in accordance with M.G.L. c. 66, § 10(b) and 950 C.M.R. 32.07(2), we have determined that a fee is necessary to process this production. . . . We anticipate possibly finding citizen’s names appearing together with their private email addresses and home or cell phone numbers because there is private housing at the former naval air base. The asbestos notification forms in the past asked for a personal phone number to be provided. These redactions are required by law under FIPA, which prohibits the disclosure of “personal data.” The personal data described above can be readily associated with a particular individual, like an email sender. While FIPA contains an exception for information that is considered a “public record”, emails are not a public record

Kathleen Delaplain, Esq. SPR25/2633 Page 4 September 11, 2025 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) and (c). 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. . . . However, we also 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) and FIPA. 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), the cybersecurity exemption (Zoom and Teams meeting links, ids, and passcodes); conference call dial-in codes/links, exempt under exemption (b); personal health information, private phone numbers and information in emails exempt under exemption (c); as well as potentially records that contain information exempt under FIPA. For any of our enforcement-related records, we would also expect to find information exempt under the investigatory exemption, M.G.L. c. 4, § 7, cl. 26 (f). Again, 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. Our physical records are indexed by date and cannot be easily searched without extensive review. The requestor would not narrow down the date range so we must search all of our asbestos records for responsive documents In light of the information provided in 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, to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. This office encourages Attorney Taber and the Department to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification to the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce

Kathleen Delaplain, Esq. SPR25/2633 Page 5 September 11, 2025 records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(iii). Attorney Taber may appeal the Department’s fee estimate within 90 days. See 950 C.M.R. 32.08(1). Please note, Attorney Taber 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: Kelsey A. Taber, Esq.