Michael Melone v. Department of Energy Resources (SPR 20252358)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 15, 2025 SPR25/2358 Rachel G. Evans, Esq. Senior Legal Counsel Department of Energy Resources 100 Cambridge Street, 9th floor Boston, MA 02114 Dear Attorney Evans: On August 12, 2025, this office received your petition on behalf of the Department of Energy Resources (Department/DOER) seeking an extension of time to produce records and requesting permission to charge for time spent segregating or redacting responsive records. See G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv); see also 950 C.M.R. 32.06(4). 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 Melone, Esq., of Allco Renewable Energy Inc. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On July 29, 2025, Attorney Melone requested: [1] All documents and correspondence related to (i) the application of Allco Finance Limited Inc. concerning the potential qualification of a property located at … Monson Turnpike in Ware (MA) (the “Site”) as a Brownfield under 225 CMR 20.00 and (ii) the initial assessment of the Site by the Massachusetts Department of Energy Resources (“DOER”)[;] [2] All documents and correspondence related to each and every pre determination letter issued by DOER pursuant to which DOER determined that a site did meet the criteria for a Brownfield under 225 CMR 20.00, including, without limitation, the underlying applications and the pre-determination letters[;] [3] All documents and correspondence related to the development and publication by DOER of every iteration of the “Guideline Regarding the Definition of “Brownfield”. 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 G. Evans, Esq. SPR25/2358 Page 2 August 15, 2025 Petition for an Extension of Time (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the Supervisor of Records (Supervisor) determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Records In its petition, the Department requests an extension of 20 business days and provides the following information in support of its request: The proposed extension is warranted because the magnitude and complexity of the Request will require extensive staff time and unduly burden the other responsibilities of this office, such that responding to the Request within the statutory timeline is beyond the capacity or the normal business hours of operation of the agency to produce the request without the extension. See G.L. c. 66, § 10(c)(iii). Further, DOER has met with the Requestor to modify the scope of its search, in order to respond to the Request in a more cost-effective and expeditious manner and the Requestor declined to modify the scope of the Request. See G.L. c. 66, § 10(c)(iv). In light of the need to collect, segregate and examine the records, as well as the capacity of the Department to produce the records without an extension, the Department has established good cause to permit an extension of time. G. L. c. 66, § 10(c)(i)-(iii). The Department is granted an extension of 20 business days.

Rachel G. Evans, Esq. SPR25/2358 Page 3 August 15, 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 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.

Rachel G. Evans, Esq. SPR25/2358 Page 4 August 15, 2025 Petition to Assess Fees 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 (c) and (d) of the Public Records Law: The records may contain the personal address, phone number, and email address of private citizens which fall under exemption (c). Finally, information in the records related to pending applications may be policy-deliberative under exemption (d). 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 established good cause for a time extension of 20 business days as described above. Additionally as described above, I find that to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. See G. L. c. 66, § 10(d)(iv). I encourage Attorney Melone and the Department to continue to communicate directly in order to facilitate producing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) Please note, Attorney Melone 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 Melone, Esq.