Damon, Gil v. Massachusetts Department of Environmental Protection (SPR 20260756)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2026 SPR26/0756 Jeanne G. Argento, Esq. General Counsel Massachusetts Department of Environmental Protection 1 Winter Street Boston, MA 02108 Dear Attorney Argento: I have received the petition of Gil Damon, of Yale Law School Environmental Justice Law and Advocacy Clinic, on behalf of Jacob Fortes, appealing the response of the Massachusetts Department of Environmental Protection (Department) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On December 25, 2026, Mr. Fortes requested the following: [A]ll emails and communications between the Massachusetts Department of Environmental Protection (MADEP) and the Markley Group, its related entities, its attorney and their staff at Pierce Atwood and any mention of the Markley Group or it’s related entities from any other person (elected or otherwise) or business entity including VHB…since July 15, 2025 to the date of this request: [1] [Six identified individuals][;] [2] DEP Central Office Staff (All)[;] [3] Northeast Regional Office Staff (All)[;] The scope of this is not to be limited to just interactions with the Markley Group but all entities who have reached out to the above individuals in reference to the Markley Group including elected officials from Federal, state, county and local levels and VHB amount others. The Department provided responses on December 26, 2025, January 5, 2026, January 8, 2026, January 12, 2026, January 23, 2026, January 28, 2026, January 29, 2026, February 11, 2026, February 12, 2026, February 19, 2026, February 20, 2026, and February 24, 2026. Unsatisfied with the Department’s responses, Mr. Damon petitioned this office and this appeal, SPR26/0756, was opened as a result. 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

Jeanne G. Argento, Esq. SPR26/0756 Page 2 March 17, 2026 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. See 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. If there are any fees associated with a response a written, good faith estimate must be provided. See 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. The Department’s Responses In its December 26, 2025 response, the Department stated, “[c]an you please let me know when you are free to discuss your public records request?” In its January 5, 2026 response, the Department stated the following: Please see below the narrowed scope of the request. Please edit and correct anything that I missed. One question that I forgot to ask is are you looking for all VHB communications or just the VHB communications pertaining to Markley. If you want to do a quick call to discuss this question – please let me know. Mr. Fortes’ request (narrowed on 1/5/2026): [A]ll emails and communications between the Massachusetts Department of Environmental Protection (MADEP) and the Markley Group, its related entities and the following staff ([three identified individuals]), its attorney and their staff at Pierce Atwood and any mention of the Markley Group or it’s related entities from any other person (elected or otherwise) or business entity including VHB…since July 15, 2025 to the date of this request: [1] [Six identified individuals][;] [2] DEP Central Office Staff (All)[;] [3] Northeast Regional Office Staff (All)[;] The scope of this is not to be limited to just interactions with the Markley Group

Jeanne G. Argento, Esq. SPR26/0756 Page 3 March 17, 2026 but all entities who have reached out to the above individuals in reference to the Markley Group including elected officials from Federal, state, county and local levels and VHB amount others. Lowell officials to be included are: [three identified individuals][.] In a January 5, 2026 email to the Department, Mr. Fortes stated the following: To clarify for the VHB, I’m looking for records pertaining to Markley only – not all communications with VHB and DEP for other projects they may be representing other clients on. As for the elected officials, while those specific names were mentioned. [An identified individual] who is now deceased and his office staff may have been in contact as well. If there’s any communications with city of Lowell outside of elected officials, that would be helpful. As you recall, city of Lowell swapped out the public health contact for their attorney so not sure if any records exist in that realm either. In an additional January 5, 2026 email to the Department, Attorney Sofia Owen, of Alternatives of Community & Environment, on behalf of Mr. Fortes, stated, “[m]y only addition is to include Governor Healy and her staff on the list of elected officials…” In an additional January 5, 2026 response, the Department stated the following: Mr. Fortes’ request (narrowed on 1/5/2026): [A]ll emails and communications between the Massachusetts Department of Environmental Protection (MADEP) and the Markley Group, its related entities and the following staff ([three identified individuals]), its attorney and their staff at Pierce Atwood and any mention of the Markley Group or it’s related entities from any other person (elected or otherwise) or business entity including VHB…since July 15, 2025 to the date of this request: [1] [Six identified individuals][;] [2] DEP Central Office Staff (All)[;] [3] Northeast Regional Office Staff (All)[;] The scope of this is not to be limited to just interactions with the Markley Group but all entities who have reached out to the above individuals in reference to the Markley Group including elected officials from Federal, state, county and local levels and VHB amount others. Massachusetts elected officials to include: Governor Maura Healey, including staff[;] Lowell officials to be included are: [four identified individuals][.]

Jeanne G. Argento, Esq. SPR26/0756 Page 4 March 17, 2026 In its January 8, 2026 response, the Department stated, “…DEP will issue a fee letter to Mr. Fortes…on Monday, January 12, 2026…” In its January 12, 2026 response, the Department provided a fee estimate of $500.00. In a January 13, 2026 email to the Department, Attorney Stephanie Safdi, of Yale Law School Environmental Justice Law and Advocacy Clinic, on behalf of Mr. Fortes, stated the following: On behalf of Mr. Fortes, the requester, I am seeking prompt clarification on the following concerns with your response: [1] Your estimate of $500 for this search seems significantly inflated. Mr. Fortes seeks production of records only from July 15, 2025 to the present between MassDEP and Markley (including officers, staff, and contractor) and between MassDEP and representatives of other public agencies that reference the Markley Group. The suggestion that MassDEP would have such a large volume of communications exchanged over the past 6 months with external parties related to the Markley Group such that review and segregation would require 24 hours of staff time is, on its own terms, extremely concerning. We would ask that you reconsider your estimate accounting for the fact that Mr. Fortes’ requests seeks solely communications exchanged between MassDEP and external entities relating to the Markley Group, which would not appear to be a significant volume of materials. Indeed, the City of Lowell provided a $100 cost estimate for production of records in response to a similar request seeking all such communications exchanged over the past five years, as opposed to six months[;] [2] Your email suggests that some significant portion of responsive records would be protected from disclosure by attorney-client privilege. However, I am sure you agree that the exchange of a communication between MassDEP and an external entity (Markley or the City of Lowell, for instance) would vitiate any such privilege, even if a MassDEP attorney were included in the communication. Please clarify MassDEP’s position on the scope of attorney-client and work product privilege for communications between the agency and external parties[;] [3] Under 950 CMR 32.07(2)(c), MassDEP may charge no more than the actual cost of reproducing responsive records. Your letter insists on advanced payment of fees but makes no provision for disgorgement of funds if the actual costs fall below the estimate, as we would expect in light of the above. Please clarify whether: (a) MassDEP intends to complete the search and provide an itemized accounting of actual costs prior to payment of fees and disclosure of records, as the regulations contemplate (950 CMR 32.06(2)(f)) or (b) whether MassDEP will send Mr. Fortes an itemized accounting of actual costs of production followed by reimbursement of pre-paid fees in excess of actual costs. Please note that

Jeanne G. Argento, Esq. SPR26/0756 Page 5 March 17, 2026 MassDEP may not legally charge for costs associated with segregation of records except as required by law, which, as noted above, should not apply to such a request[;] [4] MassDEP’s stated policy to only waive fees associated with searches that require under 4 hours of staff time is not consistent with governing regulations. Rather, under 950 CMR 32.07(2)(k), the agency’s decision-making on waiver turns on the public interest associated with the disclosure, the lack of a commercial interest of the request, and/or the requester’s financial ability to pay. I’m sure you would agree that all three waiver criteria are satisfied here, any one of which would be sufficient. Further, under 950 CMR 32.07(2)(l)(1), MassDEP may not lawfully charge for the first four hours of time associated with a search request; in other words, MassDEP’s waiver of fees associated with the first four hour is not discretionary. In a January 16, 2026 email to the Department, Attorney Safdi stated, “I am writing to inquire into the status of the responses to my January 13 email…regarding DWR’s response to Jacob Fortes’ December 25 fee request, as clarified on January 5…” In a January 21, 2026 email to the Department, Attorney Safdi stated, “[i]t has now been over a week since we emailed on behalf of Mr. Fortes on January 13 asking for clarification regarding MassDEP’s response to Mr. Fortes’ December 26 public records request…” In its January 23, 2026 response, the Department stated, “I suggest that we have a quick discussion about Mr. Fortes’ public records request…” In its January 28, 2026 response, the Department stated the following: Below please find the refined search terms that you wish MassDEP to utilize for searching for responsive records to your December 25, 2025 public records request which was edited on January 5, 2026. Please let me know if this email correctly identifies the new search terms. Your public records request was refined on January 28, 2026 as follows: While using the following search terms, please provide all emails and communications between the Massachusetts Department of Environmental Protection (MADEP) and the Markley Group, its related entities and following staff ([three identified individuals), its attorney . . . and their staff at Pierce Atwood and any mention of the Markley Group or it’s related entities from any other person (elected or otherwise) or business entity including VHB (Vanasse Hangen Brustlin) since July 3. 2025 to the date of this request: @markleygroup.com

Jeanne G. Argento, Esq. SPR26/0756 Page 6 March 17, 2026 @vhb.com @PierceAtwood.com @lowellma.gov Please apply these search terms to the persons and entities identified in the January 5, 2026 public records request. I include your January 5, 2026 public records request for reference below… In a January 29, 2026 email to the Department, Mr. Damon, on behalf of Mr. Fortes, stated the following: Here’s how we understood the agreed-upon search: MassDEP will produce public records from July 3, 2025 to present responsive to both of the following requests: Any and all emails, memoranda, communications, or other records exchanged between MassDEP and the Markley Group (including Markley Group employees, contractors, and outside counsel on the pending OADR appeal). In conducting its search in response to this request, MassDEP will search for all records exchanged between MassDEP (including the agency’s staff, officials, and counsel) and any person with an email address ending in any of the following: @markleygroup.com, @vhb.com, @pierceatwood.com. Any and all emails, memoranda, communications, or other records exchanged between MassDEP and (a) any staff or official with the City of Lowell and/or (b) any staff or official with the Massachusetts Governor’s Office. In conducting its search in response to this request, MassDEP will search for all records exchanged between MassDEP (including the agency’s staff, officials, and counsel) and any person with an email address ending in @lowellma.gov. MassDEP will also search for all records exchanged between MassDEP and [an identified individual]… In its January 29, 2026 response, the Department stated, “I will forward your public records request to MassDEP…Please let me know if you have any questions. I plan to run the email address search terms over the weekend for my emails. I am hoping that will give us an indication of how many documents MassDEP NERO staff may have that are responsive to your request.” In its February 11, 2026 response, the Department stated, “[t]he responsive documents and exempted documents are being reviewed at the Executive Office of Energy and Environmental Affairs by the Office of General Counsel. This EEA review is required because of the outstanding litigation…”

Jeanne G. Argento, Esq. SPR26/0756 Page 7 March 17, 2026 In an additional February 11, 2026 response, the Department stated, “MassDEP is not charging a fee for Mr. Fortes’ January 29, 2026 public records request. Once EEA completes its review (which should be by tomorrow) of the responsive records and the exemption log, I will share the documents and the exemption log with you.” In its February 12, 2026 response, the Department stated, “I am still waiting for EEA to complete its review of the responsive records and the exemption log…” In a February 12, 2026 email to the Department, Attorney Safdi stated the following: Mr. Fortes submitted this clearly described request for public records to MassDEP 49 days ago, on December 25, 2025. Following successive meetings between the requester, his counsel, and MassDEP, you confirmed during a meeting and by email on January 28, 2026, and again by email on January 29, MassDEP’s understanding of the records described and that MassDEP would complete the production within 10 business days-that is, by yesterday, February 11, 2026. You have not suggested that either the magnitude or difficulty of the request prevented the agency from furnishing records within the 10-day statutory window. G.L. c. 66, § 1 0(a). Nor have you provided a timely written response identifying any records the agency intends to withhold, along with the basis for withholding. G.L. c. 66, § 1 0(b). We must insist that MassDEP, having already exceeded its statutory deadline, furnish a copy of all responsive records by close of business tomorrow, February 13. We also reassert our position that neither attorney-client nor deliberative process privilege applies to the requested exchanges between MassDEP and third parties that post-date the agency’s July 3, 2025 decision on Markley’s latest air quality plan application. To the extent that any records are withheld, we must similarly insist that MassDEP provide an exemption log when it furnishes records no later than close of business tomorrow, clearly identifying any withheld records and the specific basis for withholding. In its February 19, 2026 response, the Department stated, “I am sending the responsive documents via email this morning. I am sending each DEP staff person’s emails in a separate email (i.e., one email = one DEP staff person)…” In a February 19, 2026 email to the Department, Mr. Damon stated, “[t]oday, we received eight documents pertaining to the records request…Together, these files contain approximately 50 unique emails across a six-month period that was very active for the Markley project. We are hoping to find out if we should expect more documents, or if this is the extent to which you plan to fulfill the request…” In its February 20, 2026 response, the Department stated, “I am waiting for EEA to complete its review of the remaining responsive documents. Once that is complete, I will

Jeanne G. Argento, Esq. SPR26/0756 Page 8 March 17, 2026 forward the remaining documents and exemption log to you. I expect their review to be complete on Monday…” In a February 23, 2026 email to the Department, Mr. Damon stated, “[w]e are still awaiting records from the request…” In its February 24, 2026 response, the Department stated, “[p]er Governor Healey’s order, I am not able to report to my office until tomorrow. At that time I will finish scanning the responsive and non-privileged documents…” Current Appeal In his March 4, 2026 appeal, Mr. Damon stated, “…[t]his request is sufficiently narrow as to not require a fee for staff time, yet it remain unfulfilled. This is so despite successive meet- and-confers between counsel to clarify the scope of requested records and MassDEP’s confirmation on January 28, 2026 that it would produce responsive records no later than February 11, 2026. Although MassDEP has repeatedly promised Mr. Fortes that it would expeditiously complete his request, the agency has missed its own deadlines and fallen silent…” Timeframe for Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of a request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: 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. G. L. c. 66, § 10(b)(vi). Where Mr. Fortes submitted his request on December 25, 2025, and the Department has not provided all responsive records, I find the Department has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Department must provide an estimated date as to when it intends to complete the search and provide the remaining responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Department must provide responsive records on a rolling basis.

Jeanne G. Argento, Esq. SPR26/0756 Page 9 March 17, 2026 Conclusion Accordingly, the Department is ordered to provide Mr. Fortes with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Fortes may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jacob Fortes Gil Damon Maya Nitschke Alonso Stephanie L. Safdi, Esq. Sofia Own, Esq.