Peter M. Vetere v. Department of Environmental Protection (SPR 20251432)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 28, 2025 SPR25/1432 Rachel M. Cohen MassDEP Records Manager Massachusetts Department of Environmental Protection 100 Cambridge Street, 9th Floor Boston, MA 02114 Dear Ms. Cohen: On May 20, 2025, this office received your petition on behalf of the Department of Environmental Protection (Department) requesting 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 Department furnished a copy of the petition to the requestor, Attorney Peter M. Vetere, of Verrill Dana, LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On May 6, 2025, Attorney Vetere requested the following records concerning the 35-megawatt biomass-fired power plant proposed by Palmer Renewable Energy, LLC (“PRE”) for the time period between and including March 6, 2017 and April 2, 2021: [1] All records concerning the Department’s review of the Facility after the issuance of the CPA[;] [2] All records concerning the application of any environmental justice policy of the Department to the Facility[;] [3] All records concerning the Department’s revocation of the Comprehensive Plan Approval for the Facility[;] [4] All records of communications and correspondence between and among personnel of the Department’s Boston Headquarters (including without limitation the Office of the Commissioner and the Bureau of Air and Waste) concerning the Facility[;] [5] All records of communications and correspondence between personnel of the Department’s Boston Headquarters (including without limitation the Office of the 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

Rachel M. Cohen SPR25/1432 Page 2 May 28, 2025 Commissioner and the Bureau of Air and Waste) and personnel of the Department’s Western Regional Office concerning the Facility[;] [6] All records of communications and correspondence between any Department personnel and PRE or any person acting on behalf of PRE concerning the Facility[;] [7] All records of communications and correspondence between any Department personnel and any other person concerning the Facility. 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 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 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.

Rachel M. Cohen SPR25/1432 Page 3 May 28, 2025 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 Department requests “[a]pproval to assess a fee of $1,750 for segregation and redaction costs associated with responding to a public records request . . .,” and provides the following information: [T]he preliminary IT search and discussions with staff have indicated that there could be at least 1,400 responsive record[s] (mostly email with attachments & some may be duplicates) in response to the full request. [We] anticipate some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (a), (b), (c), (d), (e) and (o). For example, we are likely to find internal meeting call-in codes, exempt under exemption (b); staff private phone numbers (especially for anything around the time of March 2020), exempt under exemption (c); personal notes exempt under exemption (e) and deliberative process materials exempt under exemption (d), including attorney work product. [P]lease be advised that the subject matter of this records request, the “revocation of the Project’s air plan approval”, is the same matter that was in dispute as the DEP administrative appeal with the Department’s Office of Appeals and Dispute Resolution, In the Matter of Palmer Renewable, Docket No. 2021-010. It was appealed to the Superior Court, listed as the following case: Palmer Renewable Energy, LLC v. MassDEP, Suffolk Superior Court, Civil Action No. 22-2926G. [A]s this is an ongoing litigation matter and there is no final MassDEP decision yet on the Revocation Order appeal, therefore, many of MassDEP’s emails discussing the matter may be exempt under the deliberative process exemption. There could be intra-agency deliberative process communications between MassDEP staff mixed in with responsive records. The Deliberative Process exemption (M.G.L. c. 4, § 7(26)(d)) may apply to those records and they will have to be segregated.

Rachel M. Cohen SPR25/1432 Page 4 May 28, 2025 Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: The Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that the litigation, relating to records at issue in Attorney Vetere’s request, is active and ongoing in the Suffolk Superior Court. See Palmer Renewable Energy LLC v. Massachusetts Department of Environmental Protection, (Suffolk Superior Court, Docket No. 2284-CV-02926). In light of the pending matter. I decline to opine on the Department’s petition at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Peter M. Vetere, Esq.