Ray Lyons v. Executive Office of Energy and Environmental Affairs (SPR 20253077)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 28, 2025 SPR25/3077 Gavin Tullis, Esq. Associate General Counsel Executive Office of Energy and Environmental Affairs 100 Cambridge Street, Suite 900 Boston, MA 02114 Dear Attorney Tullis: On October 21, 2025, this office received your petition on behalf of Executive Office of Energy and Environmental Affairs (Office/EEA) 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, the Office furnished a copy of this petition to the requestor, Ray Lyons. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 6, 2025, Mr. Lyons requested the following: [1] All conservation restrictions (CR), including showing all EEA/DCS requested changes thereto to date, and related applications initially submitted to DCS before April 1, 2025; [2] All external and internal correspondence and notes related to those CRs[;] [3] All statements showing amounts EEA paid since January 5, 2023 to Nixon Peabody and other lawyers, law firms, consultants, and experts related to EEA’s CR review and approval process[;] . . . [4] All documents created or updated since January 5, 2023 tracking CRs’ review and approved status within EEA and DCS[;] EXCEPTING from items #1 and #2 above to the extent that, by Friday, October 17, 2025, [an identified individual] approves and signs individual [CRs]. . . and sends them to the applicant for recording. On October 16, 2025, Mr. Lyons orally modified his request “to exclude any inactive or withdrawn CRs from [Items]. . . 1 and 2 above.” 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

Gavin Tullis, Esq. SPR25/3077 Page 2 October 28, 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 determination 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.

Gavin Tullis, Esq. SPR25/3077 Page 3 October 28, 2025 Current Petition In its petition, the Office seeks “approval to assess a fee . . . for costs associated with responding to [Mr. Lyons’] public records request[.]” The Office indicates that it intends to assess a rate of $25.00 hourly for “the segregation and redaction process” and further states the following in support of its request: The laws requiring redaction may include the Massachusetts Rules of Professional Conduct and the common law attorney-client privilege. The Massachusetts Rules of Professional Conduct and the common law prohibit an attorney from releasing privileged materials without the consent of a client. In this case, EEA has not waived the privilege with respect to any privileged material contained in the requested messages. In addition to segregation and redaction being required by law, a portion of the records requested could potentially contain materials exempt from disclosure under the Public Records Law, including but not limited to M.G.L. c. 4, § 7, cl. 26 (c) and (d). For example, because the request is for records related all conservation restrictions that are currently in progress and have not been approved by the Secretary, and are not limited to completed deliberations, 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). Further, given the broad request to include “[a]ll external internal correspondence and notes related to” the requested conservation restrictions,” emails between employees may include personnel or medical information that should be withheld under exemption (c), or implicate the personal privacy of named individuals under exemption (c). Similarly, conservation restriction applications may include personal identifying information of named individuals, such as home addresses, email addresses, and telephone numbers, that may also be withheld under exemption (c). 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. Further, please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law (emphasis added)). Where the Office seeks to assess fees for segregation and redaction pursuant to attorney-client privilege, which is required by law, I find it unnecessary to opine on the portion of the Office’s petition seeking to assess fees for segregating and redacting the records pursuant to the attorney-client privilege.

Gavin Tullis, Esq. SPR25/3077 Page 4 October 28, 2025 Conclusion In light of the above, to the extent the responsive records contain the exempt information described in its petition, the Office may assess a fee for segregation and redaction. Additionally, as described above, I find it is unnecessary to opine on the portion of the Office’s petition for permission to charge for time spent segregating or redacting responsive records pursuant to the attorney-client privilege. Please note, Mr. Lyons 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: Ray Lyons