Briana Connor Garcia v. Massachusetts Department of Environmental Protection (SPR 20253136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 3, 2025 SPR25/3136 Rachel M. Cohen Records Manager Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Ms. Cohen: I have received the petition of Briana Connor Garcia and Ryan Connor appealing the response of the Department of Environmental Protection (Department/MassDEP) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 6, 2025, Ms. Garcia requested “any and all records” pertaining to the following: [1] Reports, memoranda, correspondence, or data prepared by or referencing Camp, Dresser & McKee (CDM) from January 1, 1985 through December 31, 1992, concerning groundwater or drinking water contamination in the Town of Tewksbury, including the Rocco’s Disposal Area (also known as Sutton Brook Disposal Area). [2] Internal and external communications, including letters, emails, meeting minutes, or public statements between the Tewksbury Board of Health, MassDEP (formerly DEQE), or any consultants, regarding: - Drinking water safety or contamination findings, - Use or closure of municipal wells, - CDM findings or reports, and - The Town’s response to public or media inquiries. [3] Any copies, references, or correspondence related to a 1986 Tewksbury Advertiser article that discussed CDM’s findings on drinking water contamination or the Board of Health’s response to those findings. [4] …[A]ny available newspaper clippings, press releases, or Board of Health meeting minutes from 1985–1992 that mention these topics. 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

Rachel M. Cohen SPR25/3136 Page 2 November 3, 2025 The Department responded on October 22, 2025, providing a fee estimate. Unsatisfied with the Department’s response, Ms. Garcia and Mr. Connor petitioned this office and this appeal, SPR25/3136, was opened as a result. 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). The Department’s October 22nd Response In its October 22, 2025 response, the Department noted that the parties met virtually on October 14, 2025 “to clarify and refine the scope of [the] request.” The Department also stated that Ms. Garcia “confirmed that the timeframe for all requested records is January 1, 1986 – December 31, 1992.” In addition, the Department assessed a fee of $325.00 to provide the responsive records. In support of its fee estimate, the Department stated: MassDEP does not charge for staff time spent answering requests requiring less than four (4) hours to complete. However, for requests that are broad or more complex in scope, MassDEP assesses a reasonable fee to recover the actual costs of responding. The fee includes the costs of: (1) staff time to search for and produce the records responsive to your request (search time costs); (2) if applicable, staff time to identify and withhold any records that are privileged, exempt or prohibited from disclosure under law (segregation time costs); and (3) duplicating and mailing the records (production costs). MassDEP charges $25 per hour for staff time, $0.05 per page for copies, actual costs incurred for oversized copies or electronic records, and actual mailing costs. Narrowing the request may reduce or eliminate fees...

Rachel M. Cohen SPR25/3136 Page 3 November 3, 2025 In accordance with M.G.L. c. 66, § 10(b) and 950 CMR 32.07(2), we have determined that a good faith estimate of $325.00 will be required to cover search and segregation/redaction time necessary to respond to your request, as follows: Description Hours Rate Total Search time 17 hrs (excluding first 4 hrs) $25/hr $325.00 Segregation/ Redaction time 0 hrs $0 $0 Total $325.00 Current Appeal In the appeal petition, Mr. Connor stated, “I would like to formally request a full waiver of the estimated fee under M.G.L. c. 66 §10 and 950 CMR 32.07(2)(k), on the basis that the records sought are of substantial public health and environmental significance, and that the request is made in the public interest, not for any commercial purpose.” Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k). Reasonableness of the Fee Estimate Although the Department stated it will take 17 hours to search for and compile the responsive records, it is unclear why the Department requires this much time. In this case, the Department has confirmed it is not charging a fee for segregation or redaction, nor assessing a fee for the first four hours of work. However, the Department must explain why 17 hours of search time is required to produce the responsive records. The Department must provide further details regarding the task(s) involved in the search process. Additionally, the Department’s fee

Rachel M. Cohen SPR25/3136 Page 4 November 3, 2025 estimate lacks confirmation that an hourly rate of $25.00 is equal to or less than the hourly rate of the lowest paid individual with the skill necessary to perform those tasks. Accordingly, the Department must provide further details regarding its fee estimate. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee estimate of $325.00 is consistent with G. L. c. 66, § 10(d). This office encourages the parties to communicate to facilitate providing records more efficiently and affordably. Ms. Garcia and Mr. Connor may wish to narrow the request. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of 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 the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, the Department is ordered to provide Ms. Garcia and Mr. Connor with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Ms. Garcia and Mr. Connor may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Briana Connor Garcia Ryan Connor Margaret Shaw