Thomas Jones v. Executive Office of Energy and Environmental Affairs (SPR 20241842)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 1, 2024 SPR24/1842 Read D. Porter, Esq. Deputy General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Porter: On June 24, 2024, this office received your petition on behalf of the Executive Office of Energy and Environmental Affairs (Office) seeking permission to charge for time spent segregating or redacting responsive records. G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. Id. On June 10, 2024, the Office received a records request from Thomas Jones, of the American Accountability Foundation, in which he sought “[c]opies of emails in the possession (to, from, cc, bcc) of… [a named individual]… (+staff and agency) [and] [s]enior policy making staff in [the named individual’s office] [t]hat include any of [six identified keywords]… from January 1, 2023 through 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. 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

Read D. Porter, Esq. SPR24/1842 Page 2 July 1, 2024 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). 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 June 24th petition, the Office states that it “conducted a search for responsive records based on this request and identified approximately 3,145 emails.” In addition to segregation and redaction required by law under Exemption (a) of the Public Records Law, the Office explains the following in its request to assess a fee of $25 per hour for segregation and redaction: [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… (b), (c), (d), (e) or (f). For example, the legislature is currently considering legislation addressing single-use plastics, resulting in ongoing deliberation regarding the administration’s stance on these issues. I anticipate that responsive records will include communications by and between senior policymaking staff discussing policy positions that have not been resolved (exemption d). They may also include personal notes of such staff on these issues (exemption (e)), or potentially investigatory materials related to compliance with

Read D. Porter, Esq. SPR24/1842 Page 3 July 1, 2024 legal requirements. Finally, given the broad request to include emails that might have been a forward or reply from an original email with one of the search terms included, emails between employees may include personnel or medical information that should be withheld under exemption (c) or regarding personnel matters covered by exemption (b). 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 that, to the extent the responsive records contain the exempt information described above, the Office may assess a fee for segregation and redaction. Please note, Mr. Jones 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: Thomas Jones Peter C. Mulcahy, Esq.