John Baron v. Norfolk District Attorney's Office (SPR 20232857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 4, 2023 SPR23/2857 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: On November 27, 2023, this office received your petition on behalf of the Norfolk County District Attorney’s Office (Office) 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 Office furnished a copy of the petition to the requestor, John Baron. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On November 10, 2023, Mr. Baron requested the following records: [1] All emails sent to and received from external e-mail address domains for period covering 10/01/23 through present day for [identified employees] [;] [2] All records that relate to reimbursement request(s), including but not limited to receipts, invoices, credit card statements, ticket stubs, vehicle logs, airfare, lodging, car rentals, travel, entertainment, meals, business mileage, ground transportation, professional license fees, training courses, etc. for period covering 01/01/22 through present day for [identified employees] [.] 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)(iii); 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 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

Brandon P. Hunt, Esq. SPR23/2857 Page 2 December 4, 2023 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 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 $25 per hour; 2) the amount of the fee is reasonable; and 3) the fee is not designed to limit, deter or prevent access to requested public records. Id. Petitions seeking a waiver of statutory limits to fees assessed to segregate and/or redact public records must be made within ten business days after receipt of a request for public records. 950 C.M.R. 32.06(4)(g). Fee Estimates – Agencies An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.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. 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). Current Petition In its petition, the Office seeks to charge “for time segregating and redacting records to responsive to part one of Mr. Baron’s request…” In support of its request, the Office provides the following information: The undersigned records access officer has identified 9,010 potentially responsive

Brandon P. Hunt, Esq. SPR23/2857 Page 3 December 4, 2023 emails to part one of [your] request. … Among the 9,010 emails, there is sensitive information that necessitates redactions extending beyond statutory requirements outlined in G. L. c. 7, §(26)(a). These additional redactions are likely under G. L. c. 4, §§ 7(26)(c), (d), (f), (n), (o), and (p). … Exemption (c) - Unwarranted Invasion of Personal Privacy. Redaction is necessary to protect the personal privacy of individuals whose information is likely contained in the emails. Typical information includes, but is not limited to, personal identifying information and details of a highly personal nature of third parties. … Exemption (d) - Attorney Work Product. Some of the requested emails will likely contain protected attorney work product. DaRosa v. City of New Bedford, 471 Mass. 446 (2015) (attorney work product falls within the scope of exemption (d)). Segregation and redaction are essential to ensure compliance with legal and ethical obligations. … Exemption (f) - Investigatory Materials. Many emails will likely include correspondence between prosecutors and police investigators regarding active and ongoing investigations. Segregation and redaction are required to protect the integrity of those ongoing investigations and law enforcement activities. . . . … Exemption (n) - Security Concerns. Certain information in the emails, such as account numbers or matters of office security, may pose security concerns if disclosed publicly. Segregation and redaction are necessary to prevent potential harm. … Exemption (o) - Home/Email Address of an Employee. Employees will likely email receipts for reimbursement and other such records between their personal email and their office account. Segregation and redaction are needed to shield the home and email addresses of employees, ensuring their safety and privacy. … Exemption (p) - Name of a Family Member. To protect the privacy of family members who may correspond with the identified employee’s office accounts. Based on the information provided in its fee petition, I find the Office has met its burden to explain how, given the nature of the responsive records, the request could not prudently be completed without segregation or redaction. See G. L. c. 66, § 10(d)(iv).

Brandon P. Hunt, Esq. SPR23/2857 Page 4 December 4, 2023 Conclusion Accordingly, I find the Office has met its burden to explain how the response could not be prudently completed without redaction or segregation. To the extent the responsive records contain the exempt information as described above, the Office may assess a fee for segregation and redaction. Further, I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. Baron 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: John Baron