Joe Thomas v. Executive Office of Energy and Environmental Affairs (SPR 20240915)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 1, 2024 SPR24/0915 Peter C. Mulcahy, Esq. General Counsel Records Access Officer Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Mulcahy: On March 26, 2024, this office received your petition on behalf of the Executive Office of Energy and Environmental Affairs (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, Joe Thomas. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On March 12, 2024, Mr. Thomas requested the following records: [1] All electronic mail correspondence dated from June 1, 2020, until January 5, 2023, inclusive, that was A) sent to, from or copies (whether as cc: or bcc:) [an identified individual], Undersecretary of Energy at the Commonwealth of Massachusetts’s Executive Office of Energy and Environmental Affairs (EEA), which B) include, anywhere, i.e., is also sent to, from or copying (again, whether as cc: or bcc:) or which otherwise include, whether in, e.g., the body of a forwarded email, any email address ending in . . .[;] [2] Please also provide us copies of all electronic mail correspondence dated from June 1, 2020, until January 5, 2023, inclusive, that was A) sent to, from or copying (whether as cc: or bcc:) Undersecretary . . ., and which B) include, anywhere, i.e., is also sent to, from or copying (again, whether as cc: or bcc:) or which otherwise include, whether in, e.g., the body of a forwarded email . . . 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 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

Peter C. Mulcahy, Esq. SPR24/0915 Page 2 April 1, 2024 (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. 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).

Peter C. Mulcahy, Esq. SPR24/0915 Page 3 April 1, 2024 Current Petition In its petition, the Office requests permission to assess an hourly rate of $25.00 per hour for “segregation and redaction of these records is required by law.” In support of its request, the Office provides the following information: [E]EA conducted a search for responsive records based on this request and identified approximately 395 emails. The laws requiring redaction may include the Massachusetts Rules of Professional Conduct and the common law attorney- client privilege. In this case, EEA has not waived the privilege with respect to any privileged material contained in the requested messages. The request is for email communications involving a senior member of EEA, who regularly worked with EEA lawyers providing legal advice relating to matters including the interpretation of energy law, then-recent climate legislation, and other matters. … [A] portion of the records requested could potentially contain materials exempt from disclosure under the Public Records Law, including but not limited to M.G.L. c. 4, § 7, cl. 26 (c), (d), or (n). [I] anticipate many emails between [the identified individual], who led EEA’s actions in relation to these and other projects will discuss policy positions that have not been resolved (exemption d). These and other emails may also include records relating to the ‘internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments’ or other security or safety of energy infrastructure such as dams, nuclear facilities, or other energy facilities. Finally, given the broad request to include emails that might have been a forward or reply from an original email with one of the enumerated external groups, emails between employees may include personnel or medical information that should be withheld under exemption (c). In light of the Office’s 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 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 Office may assess a fee for the segregation and redaction of such exempt material. 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.

Peter C. Mulcahy, Esq. SPR24/0915 Page 4 April 1, 2024 Please note, Mr. Thomas 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: Joe Thomas Read D. Porter, Esq.