Matthew Stout v. Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (SPR 20240895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2024 SPR24/0895 Sean Duffey Records Access Officer Executive Office of Energy and Environmental Affairs Office of Coastal Zone Management 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Mr. Duffey: On March 25, 2024, this office received your petition on behalf of the Executive Office of Energy and Environmental Affairs - Office of Coastal Zone Management (Office) 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 Office furnished a copy of the petition to the requestor, Matt Stout, of the Boston Globe. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 18, 2024, Mr. Stout requested “[c]opies of any/all written communication sent or received by the Office of Coastal Management or its staff – including, but not limited, to emails, memos, or letters – from January 1, 2022 to present that includes at least two of these phrases: Alford Street; Kraft; soccer stadium; Everett, Constellation; or Designated Port Area or DPA.” 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

Sean Duffey SPR24/0895 Page 2 March 28, 2024 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. 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). Current Petition In its petition, the Office requests permission to assess an hourly rate of $25.00 per hour for segregation and redaction costs associated with responding to a public records request . . . .” In support of its request, the Office provides the following information: [We] also anticipate that many of the responsive records may be exempt from disclosure under the “deliberative process exemption” provided in M.G.L. c. 4, § 7, cl. (26)(d). The proposal for construction of a soccer stadium in Everett is an ongoing matter on which OCZM has not made a final determination. Communications in relation to OCZM’s position on the matter, or in relation to any associated legislation, are therefore the subject of inter- or intra-agency policy

Sean Duffey SPR24/0895 Page 3 March 28, 2024 deliberation and is exempt from disclosure and must be segregated and redacted…[s]ome of the records responsive to the request likely consist of EEA attorney work product produced in anticipation of or during the pendency of the DPA litigation described. … [T]he laws requiring segregation and redaction include the attorney-client privilege and attorney work product privilege. Attorneys of the Executive Office of Energy and Environmental Affairs (“EEA”), have been involved in matters related to the request, and in advising OCZM on ongoing litigation in relation to the Designated Port Area Program. [We] anticipate that many of the potentially responsive documents that [we] will have to review will involve the provision of confidential legal advise and therefore are attorney-client privileged and/or attorney work product privileged. Based on the information provided in its fee petition, I find the Office 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 Office 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 Office may assess a fee for segregation and redaction. Further, I encourage the parties to communicate to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. Stout 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: Matt Stout