Holly Robichaud v. Department of Public Utilities (SPR 20253499)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 3, 2025 SPR25/3499 Amelia Gianetta, Esq. Records Access Officer Department of Public Utilities One South Station Boston, MA 02210 Dear Attorney Gianetta: On November 25, 2025, this office received your petition on behalf of the Department of Public Utilities (Department) seeking an extension of time to produce records and requesting 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 Department furnished a copy of the petition to the requestor, Holly Robichaud. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 14, 2025, Ms. Robichaud requested “letters and emails from Executive Office of the Energy and the Environment (“EEA”) to the Department concerning Mass Save from January 1, 2024, to October 1, 2025.” Petition for an Extension of Time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (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 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

Amelia Gianetta, Esq. SPR25/3499 Page 2 December 3, 2025 municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § 10(c). If the 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) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(b). Request for Additional Time to Produce Responsive Records In its petition, the Department requests an additional twenty business days and provides the following in support of its request: The Department conducted a preliminary search and collected approximately 2,004 items. According to this preliminary assessment, which is not inclusive of all the records requested by the requester, the Department has determined that it will require an extensive amount of time to complete the request. Further, the Department has an obligation to ensure that proper procedures are maintained to prevent the dissemination of information which is protected from disclosure by law. This requires careful review and segregation of records before they are produced to a requester. Segregation and redaction of records often involves the application of multiple exemptions to the public records law to a single document, which may include several attachments. Some information is simultaneously protected by more than one exemption or different exemptions depending on context or the time of disclosure. 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)-(iv). The Department is granted an extension of 20 business days. 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).

Amelia Gianetta, Esq. SPR25/3499 Page 3 December 3, 2025 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. Current Petition In its petition, the Department requests permission to charge for segregation and redaction pursuant to the attorney-client privlage, and provides the following in support of its request: [T]he focus of the request concerns letters and emails from EEA to the Department. Furthermore, requested email communications are protected by attorney-client privilege because they are confidential communications between

Amelia Gianetta, Esq. SPR25/3499 Page 4 December 3, 2025 legal counsel and the client (i.e., the Department) undertaken for the purpose of obtaining legal advice or assistance on matters of law. As a result the Department must redact and withhold portions of responsive records to protect attorney-client privilege. Subsequently, in an email to Ms. Robichaud this office on December 1, 2025, the Department states that in addition to charging for segregation and redaction required by law under Exemption (a) of the Public Records Law, the Department requests permission to charge for segregation and redaction pursuant to Exemption (d) and provides the following in support of its request: Also there are over two hundred potential emails and attachments that will be withheld pursuant to G.L. c. 4, § 7(26)(d) because they involve a pending adjudicatory matter, including proposed legislation, rate updates, and energy efficiency. General Laws c. 4, § 7(26)(d), exempts “inter agency or intra agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” 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. 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. Conclusion Accordingly, I find the Department has established good cause for a time extension of 20 business days as described above. Additionally, 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). This office encourages Ms. Robichaud and the Department to continue to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii). Please note, Ms. Robichaud 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),

Amelia Gianetta, Esq. SPR25/3499 Page 5 December 3, 2025 10(d)(iv)(4), 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Holly Robichaud