DiLeo, Lucille v. Department of Environmental Protection - Central Regional Office (SPR 20260694)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 3, 2026 SPR26/0694 Anne Berlin Blackman, Esq. Chief Regional Counsel Massachusetts Department of Environmental Protection 8 New Bond Street Worcester, MA 01606 Dear Attorney Blackman: On February 27, 2026, this office received your petition on behalf of the Massachusetts Department of Environmental Protection (Department) 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, I understand that the Department furnished a copy of this petition to the requestor, Lucille DiLeo. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On February 23, 2026, Ms. DiLeo requested the following: [1] Email records of [an identified] state email addressee… a.) All emails (including meeting e-vites) within the date rage of December 1, 2025 through December 5, 2025, sent to any/all recipients by the addressee. b.) All emails (including meeting e-vites) within the date range of December 1, 2025 through December 5, 2025, received from any/all senders by the addressee, whether opened/viewed or not, by the addressee. c.) All emails within the date range of December 1, 2025 through December 5, 2025, on which the addressee was cc’[d] or bcc’d by any/all senders, whether opened/viewed or not by the addressee. [2] Email records of the [an identified] state email addressee… a.) All emails (including meeting e-vites) within the date range of December 11, 2025 through December 12, 2025, sent to any/all recipients by the addressee. b.) All emails (including meeting e-vites) within the date range of December 11, 2025 through December 12 2025, received from any/all senders by the addressee, whether opened/viewed or not, by the addressee. 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

Anne Berlin Blackman, Esq. SPR26/0694 Page 2 March 3, 2026 c.) All emails within the date range of December 11, 2025 through December 12, 2025, on which the addressee was cc’[d] or bcc’d by any/all senders, whether opened/viewed or not by the addressee. 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 (Supervisor) under a petition. G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 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

Anne Berlin Blackman, Esq. SPR26/0694 Page 3 March 3, 2026 search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. Current Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law under Exemption (a) and the attorney-client privilege, the Department argued the following in support of its request to charge for segregation and redaction under Exemptions (b), (c), (d), (f), (n), and (o): MassDEP’s IT staff has conducted a preliminary search of the two email accounts and located approximately 1,725 potentially responsive emails and meeting invitations (including attachments)… MassDEP has identified at least: 877 email records that may be protected by attorney-client privilege, 42 records pertaining to medical leave and reasonable accommodations that contain personal health information of MassDEP staff, 48 records pertaining to ongoing MassDEP personnel matters, 99 records pertaining to policy positions in three specific matters that are in the process of being developed by MassDEP, 6 records whose disclosure would jeopardize the investigatory tools that MassDEP uses, and 18 records that may contain confidential personal information about complainants. Given the volume of material that must be reviewed and potentially segregated or redacted… we have determined that a fee is necessary to process this production… Among the responsive records, MassDEP has also identified at least 42 records pertaining to medical leave and reasonable accommodations that contain personal health information of MassDEP staff. Because the disclosure of medical files or information relating to a specifically named individual would constitute an unwarranted invasion of personal privacy, these records are exempt from the definition of public records under M.G.L. c. 4, § 7(26)(c). Personal health information must also be withheld under M.G.L. c. 4, § 7(26)(a) because its disclosure is prohibited under the Fair Information Practices Act, M.G.L. c. 66A (“FIPA”). Although a quick initial search has identified at least 42 records pertaining to personal health information of MassDEP staff, we cannot find all such information simply by performing an electronic search, but rather each potentially responsive record… must be carefully reviewed, analyzed, and redacted, if necessary, line by line. In addition, MassDEP has identified among the responsive records at least 48 records pertaining to ongoing MassDEP personnel matters. Because the disclosure of personnel files or information relating to a specifically named individual would constitute an unwarranted invasion of personal privacy, these records are exempt from the definition of public records under M.G.L. c. 4, § 7(26)(c)…

Anne Berlin Blackman, Esq. SPR26/0694 Page 4 March 3, 2026 Furthermore, MassDEP has identified among the responsive records a minimum of 99 records pertaining to the development of legal and policy positions in three specific matters that are in the process of being investigated and addressed by MassDEP. Premature disclosure of these records could taint the policymaking process. Pursuant to M.G.L. c. 4, § 7(26)(d)… these records are exempt from the definition of public records until MassDEP makes a final policy decision regarding these matters… MassDEP attorneys will need to review all of the responsive records, not just the 99 records associated with the three specific matters identified and searched for thus far, to see if they contain information that relates to legal and policy positions being developed and therefore fall within the deliberative process exemption. MassDEP has also identified in the responsive records 6 internal case fact sheets, exempt under exemption (f)… Internal case fact sheets are important investigative tools that MassDEP uses in the process of evaluating evidence and deciding whether and what enforcement actions to take. Case fact sheets are a collection of evidence and observations at the preliminary investigative stage (for example, before MassDEP talks with the alleged violator), and because of this they may or may not be factually accurate or complete. The disclosure of case fact sheets impairs MassDEP’s investigations because it may make future investigations more difficult. Specifically, the disclosure of case fact sheets might have a chilling effect on MassDEP’s and/or the Office of Attorney General’s ability to undertake and document investigations of violations of environmental laws and regulations. Such disclosure would so prejudice effective law enforcement that disclosure would not be in the public interest… Finally, in the responsive records, we have identified 18 records that may contain confidential personal information about complainants who contacted MassDEP regarding environmental noncompliance. In these records, for example, we anticipate possibly finding the names of complainants appearing together with home phone numbers, home addresses, and/or personal health information. These redactions are required by law under FIPA, which prohibits the disclosure of “personal data.” …While FIPA contains an exception for information that is considered a “public record”, emails are not the type of record that are necessarily a public record because any number of exemptions to the Public Record Law could always apply. In fact, a home phone number or personal health information would fall under more than one public records exemption. See M.G.L. c. 4, § 7, cl. 26(a), (c) and (o). We cannot find this information simply by performing an electronic search, but rather each potentially responsive record must be carefully reviewed, analyzed, and redacted… We anticipate some records may contain materials exempt from disclosure under the Public Records Law, including M.G.L. c. 4, § 7, cl. 26 (b), (c), (f), and (n). For example, we may find internal meeting call-in codes, exempt under exemption (b) and (n), the cybersecurity exemption; personal health information,

Anne Berlin Blackman, Esq. SPR26/0694 Page 5 March 3, 2026 private phone numbers and home addresses, and individual personnel information, exempt under exemption (c); and investigative tools the disclosure of which would so prejudice effective law enforcement that disclosure would not be in the public interest, exempt under exemption (f)… 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. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information described above, the Department may assess a fee for segregation and redaction. This office encourages Ms. DiLeo 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) (an agency shall suggest a reasonable modification to 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 records sought more efficiently and affordably). Any subsequent fee estimate from the Department must be made in compliance with G. L. c. 66, § 10(b)(viii) and G. L. c. 66, § 10(d)(ii). Please note, Ms. DiLeo 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: Lucille DiLeo