Frank O'Brien v. Executive Office of Energy and Environmental Affairs (SPR 20241909)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1909 Read D. Porter, Esq. Deputy General Counsel Executive Office of Energy & Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Porter: On July 3, 2024, this office received your petition on behalf of the Executive Office of Energy & Environmental Affairs (Office) 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 Office furnished a copy of the petition to the requestor, Frank O’Brien, of Sustainable Roslindale. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 19, 2024, Mr. O’Brien requested the following: All materials – except application materials previously provided – for the Revere- Boston MVP award of $330,500 announced August 30, 2023 and described as: Regional Climate Resilience and Recreation in Boston, Revere, and Belle Isle Marsh . . . Materials requested include project progress reports, meeting notices and minutes, invoices and all related email correspondence and documents subject to G.L. C. 66 sec10 provisions . . . The date range we use is from September 16, 2023 (date after execution of contract) to June 17, 2024. 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). 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. SPR24/1909 Page 2 July 11, 2024 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. 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 petition, the Office requests permission to charge for segregation and redaction, and provides the following information in support of its petition: [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 (a), (b), (c), (d), (e) or (n). For example, the records are likely to include internal conversations among staff of the Municipal Vulnerability Preparedness (MVP) program, which issued the grant, regarding their oversight of the ongoing project or in relation to potential future policy in

Read D. Porter, Esq. SPR24/1909 Page 3 July 11, 2024 respect to grantmaking in the area. Such emails reflecting an ongoing policy deliberation would be covered by exemption (d). The records may also include personal notes of such staff on these issues covered by exemption (e), or in light of the subject matter of the grant application, may include records of flood management or other public infrastructure shielded from disclosure pursuant to exemption (n). 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. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Office may assess a fee for segregation and redaction. Additionally, I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. O’Brien 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: Frank O’Brien