Anthony Barry v. Middlesex District Attorney's Office (SPR 20233079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 26, 2023 SPR23/3079 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: On December 20, 2023, this office received your petition on behalf of the Middlesex District Attorney’s Office (Office) seeking permission to charge for time spent segregating or redacting responsive records under G. L. c. 66, § 10(d)(iv). As required by law, the Office furnished a copy of this petition to the requestor. G. L. c. 66, § 10(d)(iv). On December 6, 2023, the Office received a request dated November 20, 2023, from Adam Bradley, in which Mr. Bradley requested twenty-four (24) categories of records relating to an identified court case “or anywhere in [the Office’s] records that the name … may appear[.]” Previous Appeal This request is currently the subject of an appeal. See SPR23/3043. A determination will be issued separately within ten business days of receipt of the appeal. Petition to Assess Fees 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)(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 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 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

Daniel M. DeBlander, Esq. SPR23/3079 Page 2 December 26, 2023 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 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 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 December 20th petition, the Office seeks “approval to assess fees for costs associated with reviewing and responding” to Mr. Barry’s request. In support of its request, the Office states: [I]identifying responsive records and reviewing them for statutorily mandated and discretionary exemptions will require our Office to review Mr. Barry’s entire criminal case file comprising thousands of pages and many hours of digital records already produced to trial and appellate counsel for Mr. Barry as reflected in 18 notices of discovery and spanning 17 boxes worth of paper and digital materials.

Daniel M. DeBlander, Esq. SPR23/3079 Page 3 December 26, 2023 In addition, our Office has worked with the Executive Office of Technology Services and Security (EOTSS) to search for email records that may be responsive to Mr. Barry’s request.... This search resulted in 630 emails or email chains with associated attachments. . . . The records in Mr. Barry’s case file, currently contained in offsite archives, as well as the email records identified by EOTSS will require review for information that may be privileged or exempt from disclosure and is likely to contain substantial Criminal Offender Record Information (CORI) of specifically identified defendants other than Mr. Barry, investigatory materials including the identities and statements of voluntary witnesses, medical records of individuals other than Mr. Barry, communications subject to attorney client privilege or work product, and other information the disclosure of which may constitute an unwarranted invasion of third parties’ privacy. These categories of records and information are specifically exempt pursuant to M.G.L. c. 4, § 7, cl. 26 (a), (c), (d) and (f), and are not subject to disclosure. . . . Along with statutorily protected CORI information, the records requested are likely to contain witness information and statements or information concerning third parties the disclosure of which would constitute an unwarranted invasion of personal privacy. These records would also have to be identified and redacted pursuant to the privacy exemption (c) as well as the investigatory exemption, M.G.L. c. 4, § 7, cl. 26 (f). Conclusion In light of the Office’s 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 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 Office may assess a fee for the segregation and redaction of such exempt material. Please note, Mr. Barry 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: Anthony Barry