Kevin Freytag, Esq. v. Executive Office of Housing and Livable Communities (SPR 20252016)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2025 SPR25/2016 Jessica L. Ellis, Esq. Deputy General Counsel Executive Office of Housing and Livable Communities 110 Cambridge Street, Suite 300 Boston, MA 02114 Dear Attorney Ellis: On July 16, 2025, this office received your petition on behalf of the Executive Office of Housing and Livable Communities (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, Kevin Freytag, Esq., of Rodolph Friedmann LLP. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 26, 2025, Attorney Freytag requested: [1] All communications between the Executive Office of Housing and Livable Communities (“EOHLC”), or anyone acting on its behalf, and JNR Framingham MA OPCO LLC d/b/a Residence Inn by Marriot Framingham (“Residence Inn”), or anyone acting on its behalf, sent between January 2024 and the present[;] [2] All records (including documents and communications) concerning the execution of Contract No. OCD8400HSMA32HOTELSA, created or sent between January 2024 and the present[;] [3] All records (including documents and communications) concerning the execution of the “Scope of Services” referred to in Contract No. OCD8400HSMA32HOTELSA, created or sent between January 2024 and the present[;] [4] All records (including documents and communications) concerning any request for payment in connection with Contract No. OCD8400HSMA32HOTELSA, created or sent between January 2024 and the present[;] 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

Jessica L. Ellis, Esq. SPR25/2016 Page 2 July 17, 2025 [5] All records (including documents and communications) concerning any payment made in connection with Contract No. OCD8400HSMA32HOTELSA, created or sent between January 2024 and the present[;] [6] The solicitation that precipitated Contract No. OCD8400HSMA32HOTELSA[;] [7] All responses to the solicitation referenced in the previous paragraph[;] [8] All contracts that were executed by EOHLC as a result of the solicitation referred to in Paragraph No. 6[;] [9] All records (including documents and communications) concerning the letter that was written by [an identified individual] to JNR Framingham MA OPCO LLC d/b/a Residence Inn by Marriot Framingham, [an identified individual] at ...@jnrhotels.com, dated December 3, 2024[;] [10] All records (including documents and communications) concerning the invoice sent by Residence Inn to EOHLC dated April 7, 2025, created or sent between April 7, 2025 and the present[;] [11] All records (including documents and communications) concerning the decision by [an identified individual] or EOHLC to reject or not to pay the invoice sent by Residence Inn to EOHLC dated April 7, 2025[;] [12] All records (including documents and communications) concerning the letter that was written by [an identified individual] to JNR Framingham MA OPCO LLC d/b/a Residence Inn by Marriot Framingham, [an identified individual] at ...@jnrhotels.com, dated April 22, 2025. 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

Jessica L. Ellis, Esq. SPR25/2016 Page 3 July 17, 2025 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 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. Current Petition In its petition, in addition to charging for segregation and redaction under the attorney- client privilege, the Office argues the following in support of its request to charge for segregation and redaction under Exemptions (c) and (n) of the Public Records Law: Privacy Exemption (G. L. c. 4, § 7(26)(c) - The documents requested contain or may contain personal identifying information, such as non-public mailing addresses, social security numbers, email addresses, phone numbers, dates of birth, and other information that is exempt from disclosure pursuant to the privacy exemption. Public Safety Exemption (G. L. c. 4, § 7(26)(n) – The documents requested contain or may contain information likely to jeopardize public safety or cyber security.

Jessica L. Ellis, Esq. SPR25/2016 Page 4 July 17, 2025 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. Please note, Attorney Freytag 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: Kevin Freytag, Esq. Adrian Walleigh, Esq.