Anastasia Lennon v. Department of Energy Resources (SPR 20252241)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 5, 2025 SPR25/2241 Chris McDonough, Esq. Legal Counsel Department of Energy Resources 100 Cambridge Street, 9th floor Boston, MA 02114 Dear Attorney McDonough: On July 31, 2025, this office received your petition on behalf of the Department of Energy Resources (Department), 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 Department furnished a copy of the petition to the requestor, Anastasia Lennon, of The New Bedford Light. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 18, 2025, Ms. Lennon requested the following records between January 20, 2025 and July 18, 2025: “all emails, including email attachments, received and/or sent by [an identified individual] and/or DOER staff that contain any of the following terms: “Canada” and “wind” – “Canada” and ‘”OSW” – “Nova Scotia” and “wind” – “Nova Scotia” and “OSW”[.]” 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 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

Chris McDonough, Esq. SPR25/2241 Page 2 August 5, 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 required by law pursuant to Exemption (a) and the attorney-client privilege, the Department argues the following in support of its request to charge for segregation and redaction under Exemptions (d), (g), and (h) of the Public Records Law: 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 emails and attachments containing very broad search terms sent by all DOER employees within the last several months, 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). For the same reasons (i.e., broad search terms and the inclusion of any emails sent or received by all DOER employees since January 20, 2025), the request is likely to include “trade secrets or commercial or financial information

Chris McDonough, Esq. SPR25/2241 Page 3 August 5, 2025 voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality,” i.e., exemption (g), and “proposals and bids to enter into any contract or agreement” for procurements that have not yet begun public bidding or for which public bidding has not yet closed, i.e. exemption (h). In light of the Department’s 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 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 Department 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 Department has met its burden to explain how the response could not be prudently completed without segregation or redaction. Please note, Ms. Lennon 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: Anastasia Lennon