Jonathan Gerhardson v. Executive Office of Technology Services and Security (SPR 20253005)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 17, 2025 SPR25/3005 Luke Ferreira, Esq. Assistant General Counsel Executive Office of Technology Services and Security One Ashburton Place, Room 804 Boston, MA 02108 Dear Attorney Ferreira: On October 14, 2025, this office received your petition on behalf of the Executive Office of Technology Services and Security (EOTTS) 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). As required by law, it is my understanding that EOTTS furnished a copy of the petition to the requestor, Jonathan Gerhardson. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On September 29, 2025, Mr. Gerhardson requested: [1] The document titled “AI Sandbox Program Terms and Conditions” referenced in Section 6.1 of [an identified] policy[;] [2] Any and all proposals, applications, or requests submitted by Commonwealth Agencies and Offices to gain access to or use the AI Sandbox[;] [3] Any personalized marketing materials from generative AI companies intended for your office’s consideration[;] [4] All records describing the specific AI use cases that have been developed, are currently being tested, or have been approved for testing within the AI Sandbox[;] [5] All access and activity logs for the AI Sandbox from its inception to the date this request is processed. This request includes, but is not limited to: [l]ogs showing which users and/or agencies have accessed the sandbox, including dates and times of access[;] [l]ogs showing the specific generative AI models or tools used within the sandbox[;] [r]ecords of prompts or queries entered into the AI tools within the sandbox…[;] 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

Luke Ferreira, Esq. SPR25/3005 Page 2 October 17, 2025 [6] The current version of the “GenAI Catalog” listing each GenAI solution approved for use within the Commonwealth, as referenced in Section 5.6 of the policy[;] [7] All communications sent by EOTSS to Commonwealth Agencies and Offices requesting an inventory of applications that include a Generative AI solution, as well as the responsive inventories provided by the agencies[;] [8] All notifications and requests for approval submitted by Commonwealth Agencies and Offices to the Commonwealth CTO to procure Generative AI software or services, as required by Section 5.5 of the policy, and any records showing the CTO’s decision[;] [9] Any reports, summaries, presentations, or analyses created by or for EOTSS regarding the usage, performance, outcomes, or risks identified within the AI Sandbox program. On September 30, 2025, Mr. Gerhardson modified Items 1, 4, and 5 of his request to seek the following: [1] The most recent edition of the [identified] terms[;] [4] … any internal policies your office may rely on when making these decisions[;] [5] Timeframe: January 2025 to the date request is processed. 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

Luke Ferreira, Esq. SPR25/3005 Page 3 October 17, 2025 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, EOTTS requests an extension of time. Subsequently, in an email to Mr. Gerhardson and this office on October 15, 2025, EOTTS clarified that it seeks an extension of 20 business days. Subsequent to the opening of this petition, in an email to EOTTS and this office on October 16, 2025, Mr. Gerhardson stated, “I’ve got no issues with the proposed extension.” In light of the foregoing, I find it is unnecessary to opine on EOTTS’s petition for an extension of time. 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).

Luke Ferreira, Esq. SPR25/3005 Page 4 October 17, 2025 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. 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). Petition to Assess Fees In its petition, EOTTS requests to charge fees for segregation and redaction of the responsive records. In an email to Mr. Gerhardson and this Office on October 15, 2025, EOTTS clarified that it requests permission to charge for segregation and redaction under Exemptions (c), (d), (h), and (n) of the Public Records Law, and states the following: Exemption (c) - some of the requested records relate to EOTSS programs run in collaboration with universities, and EOTSS may need to redact the names of students or other non-EOTSS personnel where disclosure would be an unwarranted invasion of personal privacy. Exemption (d) - some of the requested records relate to policy positions still in development at EOTSS. Exemption (h) - some of the requested records relate to ongoing procurements, and are not subject to disclosure until such time as the procurement process is complete. Exemption (n) - some of the requested records relate to the EOTSS' IT infrastructure, and EOTSS will not disclose records that could reasonably jeopardize public safety or cyber security. EOTSS is currently engaging in negotiations over the scope of the request with Jon Gerhardson, so EOTSS must add the caveat that this list of anticipated exemptions is based on the request as originally submitted to EOTSS.

Luke Ferreira, Esq. SPR25/3005 Page 5 October 17, 2025 In light of EOTSS’s petition, I find that EOTSS 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, EOTSS may assess a fee for the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Conclusion As described above, I find it is unnecessary to opine on EOTSS’s request for an extension of time. Additionally, to the extent the responsive records contain the exempt information described above, the EOTSS may assess a fee for segregation and redaction. This office encourages EOTTS and Mr. Gerhardson to continue to communicate directly in order to facilitate providing records more efficiently and affordably. Mr. Gerhardson may consider narrowing the scope of his request to enable EOTSS to provide the records more efficiently and affordably. EOTTS must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Please note, Mr. Gerhardson 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: Jonathan Gerhardson