Nicholas Dube v. Massachusetts Department of Transportation (SPR 20252705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 18, 2025 SPR25/2705 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 September 15, 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, Attorney Nicholas Dube. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On August 28, 2025, Attorney Dube requested the following records “from 1/1/2025 to 8/28/2025 relates to the project known as MassDOT District 4 Administration Building, Project No. 605850-128297 (the ‘Project’): [1] All communications (electronic or otherwise) between MassDOT and any of the following individuals or entities concerning the Project related to the scope of work, removal, substitution, or replacement of any MBE subcontractor on this project. . .[;] [2] Any internal e-mails, documents, or memoranda discussing AM Equipment, LLC’s role or substitution on the project[;] [3] Any internal e-mails, documents, or memoranda discussing the MBE/WBE scope of work for the project[;] [4] Any communications between MassDOT and AM Equipment, LLC regarding AM Equipment, LLC’s scope of work, participation, or removal from the Project[;] [5] Any documents relating to approval, denial, or consideration by MassDOT of a revised participation schedule for Cranshaw Construction for the Project[;] 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. SPR25/2705 Page 2 September 18, 2025 [6] All minutes, notes, drafts, memoranda or the like produced in connection with any meeting held between the individuals and entities identified above and MassDOT.” 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 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

William J. Doyle, Esq. SPR25/2705 Page 3 September 18, 2025 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 seeks to “charge the requester for time spent segregating and redacting records that are responsive to the request.” G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv). In support of its request, the Department provides the following information: [We] are currently conducting a search for responsive records. Due to the substance of the request, [we] believe responsive records may require redaction of records for at least the following reasons: relating to policy positions being developed by an agency pursuant to Section 7(26)(d); containing certain attorney/client communications. [R]edaction under Exemption (d) is intended to avoid the premature release of materials that could taint an ongoing deliberative process. Redaction is allowed for certain communications that are protected by the attorney-client privilege, which applies under the Public Records Law. 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. Further, 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 Attorney Dube within five business days of receipt of this determination. See 950 C.M.R. 32.06(4)(h)(4). Please note, Attorney Dube 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).

William J. Doyle, Esq. SPR25/2705 Page 4 September 18, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Nicholas Dube, Esq.