Jonathan Smith v. Executive Office of Economic Development (SPR 20252762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 24, 2025 SPR25/2762 Robert J. McGovern, Esq. Senior Deputy General Counsel Records Access Officer Executive Office of Economic Development One Ashburton Place, Room 2101 Boston, MA 02108 Dear Attorney McGovern: On September 19, 2025, this office received your petition on behalf of the Executive Office of Economic Development (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, Jonathan Smith. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 9, 2025, Mr. Smith requested the following records between January 1, 2025 and September 9, 2025: [1] Any contracts, agreements, grants, or disbursements of funding between any Massachusetts state agency—including but not limited to the Massachusetts Office of Travel and Tourism (MOTT)—and the Topsfield Fair, its organizers, affiliates, or business partners; [2] Any internal communications within any Massachusetts state agency (including but not limited to emails, letters, or memoranda) that discuss or relate to the items described in (1)[;] [3] Any communications, including but not limited to emails, letters, or internal memoranda, between any Massachusetts state agency and representatives of the Topsfield Fair or its affiliates or business partners[.] 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 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

Robert J. McGovern, Esq. SPR25/2762 Page 2 September 24, 2025 (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 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 Office requests to charge for

Robert J. McGovern, Esq. SPR25/2762 Page 3 September 24, 2025 segregation and redaction under Exemptions (c) and (d) of the Public Records Law. In an email to Mr. Smith and this Office on September 23, 2025, the Office provides the following information in support of its request: Exemption (c) of the Public Records Law, commonly referred to as the “privacy exemption,” allows an agency to withhold personnel and medical files or information, as well as “any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy”. M.G.L. c. 4, § 7(26)(c). We anticipate the potentially responsive records will contain home addresses, personal email addresses or phone numbers, particularly in letters of support provided with the Destination Development Capital Grant Program application materials. We also anticipate there could be information unrelated to the request within the responsive records that constitute an unwarranted invasion of personal privacy, such as details of personnel records, medical appointments, family relationships, etc. We additionally anticipate the potentially responsive records may contain documentation and materials that are subject to an active and ongoing deliberate process review as part of the current FY26 Destination Development Capital Grant Program application review process that is currently underway and are exempt from disclosure pursuant to the Deliberate Process Exemption of the Public Records Law. See M.G.L. c. 4, § 7(26)(d). The Deliberative Process Exemption is intended to avoid release of materials that could taint the deliberative process if prematurely disclosed. 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. I encourage Mr. Smith and the Office to continue to communicate directly in order to facilitate producing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Mr. Smith may appeal the Office’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Mr. Smith 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).

Robert J. McGovern, Esq. SPR25/2762 Page 4 September 24, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Jonathan Smith