Donahoe, Taylor v. Department of Fish and Game (SPR 20260910)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 20, 2026 SPR26/0910 Tori LaBate, Esq. Assistant General Counsel Department of Fish and Game 100 Cambridge Street, Floor 6 Boston, MA 02114 Dear Attorney LaBate: On March 13, 2026, this office received your petition on behalf of the Department of Fish and Game (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, it is my understanding that the Department furnished a copy of the petition to the requestor, Taylor Donahoe, Esq. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On February 27, 2026, Attorney Donahoe requested the following: [1] Any and all plans, bidding materials, advertisements for bids and contractor documents on the subject of the Project[;] [2] Any and all analyses, opinions, measurements, or reports produced or received by the NHESP and/or the Mass DCR, on the subject of the Project[;] [3] Any and all records, communications, orders, or plans related to any environmental site assessments or other environmental testing completed on the Site[;] [4] Any and all analyses, opinions, measurements, results, or reports produced or received by the NHESP and/or the Mass DCR, regarding the endangered species on the Site[;] [5] Any and all permits, approvals, other orders, or conservation permits (whenever issued) on the subject of the Project and/or other tree cutting on the Site[;] [6] Any and all applications, correspondence, plans, documents, or other materials between the Mass DCR, and/or its predecessor – the Department of Environmental Management, and NHESP, and/or the Division of Fisheries and Wildlife, regarding the Project or any conservation permit for the Site (whenever issued). 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

Tori LaBate, Esq. SPR26/0910 Page 2 March 20, 2026 Petition to Assess Fees – Municipalities The Supervisor of Records (Supervisor) may approve a petition from a municipality to charge for time spent segregating or redacting or to charge in excess of $25 per hour, if the Supervisor determines that 1) the request is for a commercial purpose or 2) the fee represents an actual and good faith representation by the municipality to comply with the request. G. L. c. 66, § 10(d)(iv). 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. 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 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Fee Estimates – Municipalities A municipality may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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). Municipalities may not assess a fee for the first 2 (two) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested unless the municipality has 20,000 people or less. G. L. c. 66, § 10(d)(iii). Where appropriate, municipalities 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. However, municipalities may charge more than $25 per hour if such rate is approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). 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)(iii); 950 C.M.R. 32.06(4).

Tori LaBate, Esq. SPR26/0910 Page 3 March 20, 2026 Current Petition In its petition, in addition to charging for segregation and redaction required by law under Exemption (a), the Department argues the following in support of its request to charge for segregation and redaction under Exemption (c): Now that the requested files have been segregated, compiled, and scanned DFW must review the records for any information exempted from disclosure under the Public Records Law. In particular, DFW will need to redact for site-specific rare species information as required by G.L. c. 66 §17D (excluding records in the NHESP database from the definition of public records and requiring confidentiality for site-specific rare species information). Additionally, since files could contain comments from abutters or other people interested in these sites, records will be reviewed for protected personal information and such information will be redacted if found. In an email sent to the office on March 18, 2026, Attorney LaBate provided the following additional information: Thank you acknowledging receipt of our petition. I would like to add that any redactions we would make to communications from private individuals would be under the privacy exemption to the public records law at G.L. c. 4, § 7 (26)(c). This may include things like cell phone numbers or email addresses. In light of the Department’s petition, I find that 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. See G. L. c. 66, § 10(d)(iv). Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Department may assess a fee for segregation and redaction. I encourage the parties to communicate further to enable the Department to provide records in an efficient and affordable manner. Please note, Attorney Donahoe 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).

Tori LaBate, Esq. SPR26/0910 Page 4 March 20, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Taylor Donahoe, Esq.