Anthony Barry v. Middlesex District Attorney's Office (SPR 20240184)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 5, 2024 SPR24/0184 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Anthony Barry appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 20, 2023, Mr. Barry 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 and Petition This request was the subject of a previous appeal and a petition from the Office. See SPR23/3043 Determination of the Supervisor of Records (December 27, 2023) and SPR23/3079 Determination of the Supervisor of Records (December 26, 2023). In my December 26th determination, I found that the Office may assess a fee for the segregation and redaction of the responsive records. Concurrent with its petition to this office, in a written response to Mr. Barry on December 20, 2023, the Office provided a fee estimate. Objecting to the fees, Mr. Barry appealed, and this case was opened as a result. 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 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. SPR24/0184 Page 2 February 5, 2024 order to withhold a requested record. 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. 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. 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). G. L. c. 66, § 10(e) G. L. c. 66, § 10(e) provides that “[a] records access officer shall not charge a fee for a public record unless the records access officer responded to the requestor within 10 business days under subsection (b).” In his appeal petition, Mr. Barry contends that “the initial public records request was mailed to the Middlesex District Attorney’s office on Nov. 20, 2023,” and that the “Office failed to respond in the time allowed by statute.” In its December 20th response, the Office states that Mr. Barry’s request was “received by [the] Office on December 6, 2023,” and confirmed this in a telephone conversation with this office on January 31, 2024.

Daniel M. DeBlander, Esq. SPR24/0184 Page 3 February 5, 2024 Where the Office received Mr. Barry’s request on December 6, 2023, and initially responded on December 20, 2023 by providing a fee estimate under G. L. c. 66, § 10(b), I find the Office may assess a fee to produce responsive records. The Office’s December 20th Fee Estimate In its December 20, 2023 response, the Office provides a total fee estimate of $9,937.50 and provides the following explanation in support of its estimate: [I]dentifying responsive records and reviewing them for statutorily mandated and discretionary exemptions will require [the] 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. In addition, [the] 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. As indicated above [the] Office has already provided Mr. Barry and his trial and appellate counsel with his entire criminal case file not subject to legal privileges in the course of both his trial and in post-conviction proceedings. As his request currently stands, [the] Office will be required to devote substantial resources and personnel time to locate, digitize, review and segregate the documents described above in order to identify responsive records and redact for any exempted information or materials. . . . 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. Accordingly, the responsive information must be reviewed and redacted from the records pursuant to law. . . . [R]eview of Mr. Barry’s case file, segregation of responsive records, and redactions for exempt information will require an average of 23 hours per box of materials for the responsive case file. For 17 boxes this will require approximately

Daniel M. DeBlander, Esq. SPR24/0184 Page 4 February 5, 2024 391 hours. Additionally, [the Office] estimate[s] that review of each email, email chain and associated attachments will take an average of one (1) minute per email. This will require approximately 630 minutes or 10.5 hours. This totals 401.5 hours for review. After subtracting the initial four hours the total time required to review that is subject to charge is 397.5 hours. At a rate of $25 an hour this comes to $9,937.50. Based on the Office’s December 20th fee estimate, it is unclear why the Office requires “an average of 23 hours per box of materials” to review the responsive records. The Office must provide further details regarding the contents of the boxes, such as the types of records or estimated number of pages contained in the boxes, and why it would take an average of 23 hours to review the contents of each. See G. L. c. 66, § 10(d)(iv) (requiring the amount of the fee be reasonable). Additionally, the Office is advised that, under the Public Records Law, 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 records, but the fee shall not be more than $25 per hour. G. L. c. 66, § 10(d)(ii). Consequently, the Office must confirm whether the hourly rate being used is equal to or less than that of the lowest paid employee with the necessary skills to perform the tasks. For the reasons discussed above, I find the Office must revise its fee estimate or provide further explanation of how the fees assessed are consistent with G. L. c. 66, § 10(d). Conclusion Accordingly, the Office is ordered to provide Mr. Barry 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. Sincerely, Manza Arthur Supervisor of Records cc: Anthony Barry