Louis Petrozzi v. Executive Office of Energy and Environmental Affairs (SPR 20251414)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 21, 2025 SPR25/1414 Gavin Tullis, Esq. Associate General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Tullis: On May 19, 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, Louis Petrozzi. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On May 5, 2025, Mr. Petrozzi requested: [1] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of public hearings, or any other information regarding the establishment of the Water Resources Commission pursuant to M.G.L. Section 8A-8F, inclusive, since January 1, 2020; [2] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of public hearings or any other information regarding the policies, rules and regulations established for the administration of Section 8A-8F and the Water Resources Commission; [3] All records of sighted entangled sea turtles from 2000 to the present off the Massachusetts coast that Mass Environmental Cops (ECC) reported to the scene of an entangled sea turtle…[t]he license number of the fishing gear found on the sea turtle…[t]he name, phone number and email of the said license fisher…[a]ll records (including pictures, video and emails etc.) of any investigative effort by the MEC regarding any said incident of a sighted entangled sea turtle; 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

Gavin Tullis, Esq. SPR25/1414 Page 2 May 21, 2025 [4] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of public hearings or any other information regarding the policies, procedures, rules and regulations established for the guide the administration of the Task Force and the Water Resources Commission; [5] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of meetings or any other information regarding any proceedings conducted by the Task Force between January 1, 2023 and April 30, 2025; [6] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of meetings or any other information regarding any proceedings conducted by the Task Force related to the "Declaration of Drought Status" in the Commonwealth between January 1, 2023 and April 30, 2025; [7] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of meetings or any other information regarding any proceedings conducted by the Task Force related to the inclusion, application, meaning and/or interpretation of the words "Reflecting Conditions as of [date]" referenced on Drought Status Maps issued by the Commonwealth between January 1, 2023 and November 30, 2024; [8] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of meetings or any other information regarding any proceedings conducted by the Commonwealth or the Task Force related to the change of the reference "Reflecting Conditions as of [Date]" to "Declaration Date: [Date]"on the Drought Status Maps issued by the Commonwealth from December 1, 2024 to April 30, 2025; [9] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of meetings, policies, rules, regulations or any other information regarding any proceedings conducted by the Commonwealth or the Task Force that allows the declaration date of a "Drought Status" to be backdated, made retroactive or the effective date revised of a drought status to a previous period reviewed by the Task Force[.] On May 18, 2025, Mr. Petrozzi modified his request as follows: [2] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of public hearings or any other information regarding the policies, rules and regulations established for the administration of Section 8A-8F and the Water Resources Commission between the period of January 1, 2023 to April 30, 2025. Excluded from this request are any records related to the Inter-basin Transfer Ad and associated policies and regulations;

Gavin Tullis, Esq. SPR25/1414 Page 3 May 21, 2025 [3] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of public hearings or any other information regarding the formation and/or appointment of the Drought Management Task Force (the "Task Force") between the period of January, 1, 2019 and April 30, 2025; [9] All documents, correspondence, communications, reports, minutes of meetings, video meetings, transcripts of meetings, policies, rules, regulations or any other information regarding any proceedings conducted by the Commonwealth or the Task Force that allows the declaration date of a "Drought Status" to be backdated, made retroactive or the effective date revised of a drought status to a previous period reviewed by the Task Force between the period of January, 1, 2019 and April 30, 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

Gavin Tullis, Esq. SPR25/1414 Page 4 May 21, 2025 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. Current Petition In its petition, in addition to charging for segregation and redaction under attorney-client privilege, the Office argues the following in support of its request to charge for segregation and redaction under Exemption (d) of the Public Records Law: In addition to segregation and redaction being required by 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 (d). For example, the materials may include records that possess a deliberative or policymaking character and relate to an ongoing deliberative process, including factual reports and investigations which are not “reasonably complete.” Because the request includes any document “relating” to any “proceeding” of several bodies within EEA, and are not limited to completed deliberations, the request is likely to include a substantial number of records relating to ongoing deliberations and other discretionary policymaking activities exempt from disclosure under exemption (d). In light of the breadth of the search, other exempt material is likely also included. 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 As described above, I find the Office has met its burden to explain how the response records 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 continue to communicate to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. Petrozzi 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).

Gavin Tullis, Esq. SPR25/1414 Page 5 May 21, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Louis Petrozzi