James Gerardi v. Executive Office of Energy and Environmental Affairs (SPR 20250382)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 10, 2025 SPR25/0382 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 February 7, 2025, 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, James Gerardi. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). In four separate requests on January 23, 2025, Mr. Gerardi requested: [1] [R]ecords from the last 2 years of all arrests, citations, summons and reports written or submitted by [an identified individual;] [2] [The] Massachusetts Environmental Police policy regarding the use of body worn cameras[;] [3] Any records of discipline against or involving [two identified individuals;] [4] Any emails, department phone/text message records or official correspondence (to, from, reply, reply all, cc or bcc) involving [two identified individuals] which contain in any part of the record the names or partial names of [seven identified individuals;] [5] Any and all encounters with hunters/citizen in which the encounter occurred between the dates 12/14/24 and 12/19/24 and the corresponding summons, citations, arrests authored by [two identified individuals] and the date in which the report, citations, arrest, summons was given/written in relation to the date of the encounter actually occurred. 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. SPR25/0382 Page 2 February 10, 2025 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 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 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.

Katrina Chicojay Moore, Esq. SPR25/0382 Page 3 February 10, 2025 Conclusion The Office submitted its petition on February 7, 2025, more than ten business days after receipt of the request. In light of the fact, the Office has not demonstrated it submitted a timely petition, permission to charge for time spent segregating or redacting responsive records cannot be granted. 950 C.M.R. 32.06(4)(g). Please note, however, this determination does not preclude the Office from charging for segregation and redaction that is required by law. Sincerely, Manza Arthur Supervisor of Records cc: James Gerardi