Michael Lewis v. Massachusetts Department of Transportation (SPR 20251934)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 10, 2025 SPR25/1934 William J. Doyle, Esq. Records Access Officer Office of the General Counsel Massachusetts Department of Transportation 10 Park Plaza, Suite 3910 Boston, MA 02116 Dear Attorney Doyle: On July 3, 2025, this office received your petition on behalf of the Massachusetts Department of Transportation (Department) requesting permission to assess fees for time spent segregating and 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, Michael Lewis, of Global Partners LP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 18, 2025, Mr. Lewis requested the following records: [1] A complete copy of the proposal submitted by the successful proposer with the highest proposal score . . . for the Request for Proposal issued by the Massachusetts Department of Transportation for Bid No . . .[;] [2] Copies of all responses from the Successful Proposer received by MassDOT to Requests for Clarifications[;] [3] Copies of all meeting minutes for MassDOT Board of Directors meetings that refer or relate to the RFP on and after December 23, 2024[;] [4] Copies of all documents referring or relating to the recusal (or proposed recusal) and/or reinstatement of any member of the Selection Committee for the RFP, and/or any disclosures or determinations filed or received pursuant to M.G.L. c. 268A, the Massachusetts Conflict of Interest Law, in connection with the RFP[;] [5] Copies of all written communications, including, without limitation, letters, 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

William J. Doyle, Esq. SPR25/1934 Page 2 July 10, 2025 electronic mail, and text messages, between MassDOT, its agents, employees, and/or board or committee members, on the one hand, and the Successful Proposer, its agents, employees, team members, contractors and/or consultants, on the other hand, regarding changes or adjustments to the Successful Proposer’s Proposal[;] [6] Copies of all written communication, including, without limitation, letters, electronic mail, and text messages, between MassDOT, its agents, employees, and/or board or committee members, on the one hand, and any third-party individuals or entities and/or other government offices, on the other hand, regarding the Successful Proposer’s Proposal. In an email dated July 8, 2025, Mr. Lewis narrowed categories four and five and withdrew category six of the June 18th public records request. 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).

William J. Doyle, Esq. SPR25/1934 Page 3 July 10, 2025 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. Current Petition In its petition, the Department seeks to “charge the requester for time spent segregating and redacting records that are responsive to the request.” In support of its request, the Department provides the following information: [We] are currently conducting a search for responsive records. However, due to the substance of the request, [we] believe that some of the responsive records, in particular communications, require redaction of records that contain: Attorney/client communications, Information “specifically or by necessary implication exempted from disclosure by statute” pursuant to Massachusetts General Laws, Chapter 4, Section 7(26)(a), Personal information under Section 7(26)(c). [W]ith regard to records which must be exempted from disclosure by statute, MGL c. 268B, § 3(g) provides that opinions of the State Ethics Commission provided in response to a request from a state employee are confidential. [T]he Massachusetts Public Records Law allows redaction under Exemption (c) for records likely to contain “personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy.” [R]edaction is allowed for certain communications that are protected by the attorney client privilege, which applies under the Public Records Law. These would be communications between MassDOT personnel and MassDOT’s attorneys, and include discussions seeking legal advice and/or opinion. These communications would be those sent or received during the course of the client’s search for legal advice/opinion, made in confidence, and where the privilege has

William J. Doyle, Esq. SPR25/1934 Page 4 July 10, 2025 not been waived. See Suffolk Construction Co. v. Division of Capital Asset Management, 449 Mass. 444, 450, n.9 (2007). Based on the information provided in its fee petition, I find the Department has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, I find the Department has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. Also, I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. When preparing a fee estimate for the provision of the requested records, the Department is advised to provide a detailed explanation to the requestor indicating why the estimated amount of time is necessary. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee must be reasonable). The Department must provide a response to Mr. Lewis within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Mr. Lewis 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: Michael Lewis Christopher Smith, Esq.