Epstein, Gideon v. Executive Office of Technology Services and Security (SPR 20261147)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 6, 2026 SPR26/1147 Luke Ferreira, Esq. Assistant General Counsel Executive Office of Technology Service & Security 1 Ashburton Place, 8th Floor Boston, MA 02108 Dear Attorney Ferreira: On March 30, 2026, this office received your petition on behalf of the Executive Office of Technology Service & Security (Office/EOTSS) seeking an extension of time to produce records and 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 Office furnished a copy of the petition to the requestor, Gideon Epstein, Esq., of the American Civil Liberties Union of Massachusetts. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On March 16, 2026, Attorney Epstein requested various categories of records relating to an identified corporation and the use of artificial intelligence. 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 municipality; and 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

Luke Ferreira, Esq. SPR26/1147 Page 2 April 6, 2026 (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) must provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Request for Additional Time to Produce Records Subsequent to the opening of this petition, Attorney Epstein stated in an email addressed to the Office, “[w]e are happy to accommodate a reasonable extension of time for EOTSS to respond to our public record request.” Where the requestor has agreed to the extension, it is unnecessary to opine on the Office’s petition for an extension of time. 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)(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 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 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 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

Luke Ferreira, Esq. SPR26/1147 Page 3 April 6, 2026 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. 32.06(4). Current Petition In its petition, the Office requests “permission to assess a fee…” In support of its petition, the Office provides the following information: Finally, given that the request as written will inevitably require EOTSS to review tens or hundreds of thousands of email communications (to identify email communications that discuss OpenAI or ChatGPT products or services), EOTSS wishes to assess a fee for searching, compiling, segregating, and redacting any responsive records as permitted under G. L. c. 66, § 10(d). EOTSS notes that all EOTSS personnel competent to perform the review work earn in excess of the statutory cap of $25/hour. EOTSS anticipates that records of the varied types captured by this request would take at least 0.5 minutes to review on average. EOTSS’ good faith estimate would therefore be $25/hour, at a review speed of 120 records per hour assuming ~0.5minute/record, and less the first four hours necessary for review, which EOTSS is obligated by law to provide at no cost. If EOTSS’ preliminary search f or responsive records produces 10,000 or more communications records that need to be reviewed for responsiveness, EOTSS would seek to assess a fee of $1,983.33 (10,000 records at 120 records/hour would require 83.33 hours of review. EOTSS is statutorily obligated to provide the first 4 hours of review at no cost, leaving 79.33 hours. At a rate of $25/hour, the total fee would be $1,983.33). EOTSS believes that 10,000 records is an extremely conservative estimate of the number of records related to communications sent or received by any EOTSS personnel that reference

Luke Ferreira, Esq. SPR26/1147 Page 4 April 6, 2026 “OpenAI” or “ChatGPT” from January 1, 2025, through the date of this request. I find the Office has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Consequently, permission to charge for time spent segregating or redacting responsive records cannot be granted. Please note, however, this does not preclude the Office from charging for segregation and redaction that is required by law. Appropriate Definitions, Parameters, and Time Frames In Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Attorney Epstein and the Office to communicate directly in order to facilitate providing records more efficiently and affordably. Attorney Epstein may consider narrowing the scope of his request to enable the Office to provide the records more efficiently and affordably. The Office must use its superior knowledge of the records to suggest any

Luke Ferreira, Esq. SPR26/1147 Page 5 April 6, 2026 potential reasonable modifications to the request. See G. L. c. 66, § 10(b)(vii) (an agency shall 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 the agency to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Conclusion Accordingly, I find the Office has not met its burden to explain how the response could not be prudently completed without redaction or segregation. Please note, however, this does not preclude the Office from charging for segregation and redaction that is required by law. Sincerely, Manza Arthur Supervisor of Records cc: Gideon Epstein, Esq.