Thomas Rozelle v. Massachusetts Department of Environmental Protection (SPR 20253078)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2025 SPR25/3078 Christine LeBel, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection Western Regional Office 436 Dwight Street, 5th Floor Springfield, MA 01103 Dear Attorney LeBel: On October 21, 2025, this office received your petition on behalf of the Massachusetts Department of Environmental Protection (Department/MassDEP) 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, Thomas Rozelle. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 6, 2025, Mr. Rozelle requested: [1] Documents and records regarding the release of sewage from Holyoke’s, Springfield[’]s, and Chicopee’s wastewater treatment plants into the Connecticut River[;] [2] Documents and records regarding the repairs of Holyoke’s wastewater and sewage pipes into the Connecticut River[;] [3] Communications and records discussing the effects of combined sewer Overflows (CSOs) from Massachusetts facilities going into the Connecticut River[;] [4] Documents and records regarding the partnership of Holyoke and Veolia North America to treat wastewater. 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 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

Christine LeBel, Esq. SPR25/3078 Page 2 October 27, 2025 (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 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, in addition to charging for segregation and redaction under the attorney- client privilege, the Department argues the following in support of its request to charge for segregation and redaction under Exemptions (b), (d), (e), (f) and (n) of the Public Records Law:

Christine LeBel, Esq. SPR25/3078 Page 3 October 27, 2025 The fee estimate provided is for the segregation and redaction process as a whole and cannot be split up by privilege or exemption. MassDEP is responsible for preventing the dissemination of information that is protected from disclosure by law (such as attorney client privileged communications) and also is entitled to withhold information/documents exempt from the definition of public records found at M.G.L. c. 4, § 7, cl. 26. Such segregation and redaction of records often involves the application of multiple privileges and/or 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 segregation or redaction of information on the basis of one privilege/exemption versus another cannot reasonably be separated. Hence, estimates in this correspondence capture the whole, regardless of which privilege or exemption(s) may ultimately apply. … [W]e expect to find other exempt information mixed in with potentially responsive records and privileged materials, we seek permission to charge fees for employee time spent on segregating and redacting records for reasons other than attorney-client privilege. We anticipate that 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 exemptions (b) and (n); personal notes related to discussions with the cities and/or EPA regarding CSO issues, exempt under exemption (e); investigatory materials, exempt under exemption (f); and on-going deliberations exempt under exemption (d), including attorney work product. 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, Mr. Rozelle 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).

Christine LeBel, Esq. SPR25/3078 Page 4 October 27, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Thomas Rozelle