Aaron Fitzpatrick v. Executive Office of Energy and Environmental Affairs (SPR 20243207)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2024 SPR24/3207 Katrina Chicojay Moore, Esq. Associate General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Chicojay Moore: On November 26, 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(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, Aaron Fitzpatrick. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 12, 2024, Mr. Fitzpatrick requested “all state email communication To and From [an identified] Captain . . . of the Massachusetts Environmental Police containing mention of [an identified Officer] . . . from January 15, 2023 to November 13, 2024.” 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 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. 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

Katrina Chicojay Moore, Esq. SPR24/3207 Page 2 December 2, 2024 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, in addition to charging for segregation and redaction required by law under Exemption (a) and attorney-client privilege, the Office argues the following in support of its request to charge for segregation and redaction under Exemptions (b), (c), (f), and (o) of the Public Records Law: [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), (f), or (o). For example, the records may include internal conversations among EEA staff relating to internal personnel rules and practices of the Massachusetts Environmental Police (MEP) (exemption b). They may also include investigatory materials related to an ongoing investigation into a named individual (exemption f) or Criminal Offender Record Information (CORI) covered by exemption (a). 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

Katrina Chicojay Moore, Esq. SPR24/3207 Page 3 December 2, 2024 personnel or medical information that should be withheld under exemption (c), or the home address, personal email address, or home telephone number of an EEA employee covered by exemption (o). 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, I find the Office has met its burden to explain how the response could not be prudently completed without segregation or redaction. I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. Fitzpatrick 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: Aaron Fitzpatrick