Herman, Colman v. Massachusetts Port Authority (SPR 20260579)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 2, 2026 SPR26/0579 Shannon O’Donnell Public Records Access Officer Massachusetts Port Authority One Harborside Drive, Suite 200S East Boston, MA 02128 Dear Ms. O’Donnell: I have received the petition of Colman Herman appealing the response of the Massachusetts Port Authority (Authority) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 21, 2026, Mr. Herman requested “any and all settlement agreements, exit agreements, separation agreements, letter agreements, and/or the like executed by the Massachusetts Port Authority for the period January 1, 2021 to the present.” The Authority responded on February 2, 2026 and February 18, 2026, providing a fee estimate. Unsatisfied with the Authority’s responses, Mr. Herman petitioned this office and this appeal, SPR26/0579, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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

Shannon O’Donnell SPR26/0579 Page 2 March 2, 2026 If there are any fees associated with a response, a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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). The Authority’s February 2nd and February 18th Responses In its February 2, 2026 response, the Authority stated: In accordance with 950 CMR 32.06, you may be required to pay the reasonable cost of responding to your public records request. That cost may include reimbursement for search time and document segregation time, as well as a charge for copying the public records you have requested. In the event you will be required to pay that cost, we will provide you with a written estimate of those costs before proceeding to comply with your request… In its February 18, 2026 response, the Authority provided a fee estimate of $500.00 to produce the responsive records. In support of its fee estimate the Authority stated: Based on Massport’s initial review, Massport estimates that there are approximately 120 documents that are responsive to your request. Massport estimates that it will take approximately 24 hours to review, segregate, and redact the documents. In accordance with the public records statute, Massport will not assess fees for the first four hours of employee time. See 950 CMR 32.07(2)(l)(1). You will be charged $25 per hour, based on the hourly rate of the lowest paid employee who can complete this work, for a total fee of $500. See 950 CMR 32.07(2)(l)(3). If you would consider requesting a narrowed time period for

Shannon O’Donnell SPR26/0579 Page 3 March 2, 2026 records, e.g. one (1) year instead of five (5) years, this may result in a substantial reduction in the estimated fee. Current Appeal In his appeal petition, Mr. Herman argued, “Massport cannot cha[r]ge me for records because it was late in responding to my public records request.” G. L. c. 66, § 10(e) Please be advised, G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under [G. L. c. 66, § 10(b)].” It is unclear if the Authority’s response met all the requirements under G. L. c. 66, § 10(b) to assess a fee for the requested records. Pursuant to the law, the written response must be not later than 10 business days after the initial receipt of the request for public records, made via first class or electronic mail and must: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency’s or municipality’s ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) 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

Shannon O’Donnell SPR26/0579 Page 4 March 2, 2026 the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 10A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 10A. G. L. c. 66, § 10(b). The Authority is advised, in order to assess a fee for the requested records, it must demonstrate it provided a response in compliance with G. L. c. 66, § 10(b). Specifically, the Authority must clarify how its February 2nd response comports with the requirements of G. L. c. 66, § 10(b). Conclusion Accordingly, the Authority is ordered to provide Mr. Herman with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Mr. Herman may appeal the substantive nature of the Authority’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman