Anthony Barry v. Middlesex County District Attorney's Office (SPR 20241302)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 10, 2024 SPR24/1302 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 requesting reconsideration of my February 5, 2024 determination pertaining to a request to the Middlesex District Attorney’s Office (Office). 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 Appeals and Petition This request was the subject of previous appeals and a petition from the Office. See SPR23/3043 Determination of the Supervisor of Records (December 27, 2023); SPR23/3079 Determination of the Supervisor of Records (December 26, 2023); and SPR24/0184 Determinations of the Supervisor of Records (February 5, 2024, March 12, 2024). In my March 12th determination, I declined to reverse the previous determination, where I found that the Office must revise its fee estimate or provide further explanation of how the fees assessed are consistent with the Public Records Law. The Office responded on February 20, 2024, providing additional information concerning its fee estimate. Objecting to the fees, Mr. Barry further 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). 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. SPR24/1302 Page 2 May 10, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in 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. The Office’s February 20th Response In its February 20, 2024 response, the Office provides a total fee estimate of $9,937.50. In support of its fee estimate, the Office provides the following information: Our Office has determined that 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 17 boxes worth of paper and digital materials. Combined, these materials contain thousands of pages and many hours of digital records already produced to trial and appellate counsel for Mr. Barry. Our Office has requested the responsive case file be delivered from offsite archives but has not to date received the file for review. The responsive records are reflected in part in 18 notices of discovery as well as the docket for this case. With its February 20th fee estimate, the Office also provides a docket sheet listing approximately 229 filings, and the Notices of Discovery described above, listing thousands of pages of witness statements, photographs, audio and visual recordings, databases, and other records. In its February 20th response, the Office further explains the following: 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. In order to identify these records we asked EOTSS to identify emails without time limitation that include [numerous search terms].... This search resulted in 630 emails or email chains with associated attachments. . . . Given the volume of information requiring review, our Office’s reasonable and good faith estimate of cost amounts to $9,937.50. This estimate is based upon the following. I estimate based on substantial prior review of similar case files and boxes of materials, a review of the notices of discovery and docket sheet provided today along with this letter, and discussions with Assistant District Attorneys who handled Mr. Barry’s motions for new trial, that review of Mr. Barry’s case file,

Daniel M. DeBlander, Esq. SPR24/1302 Page 3 May 10, 2024 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 391 hours. Additionally, I estimate 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. An Assistant District Attorney is the lowest paid employee with our agency who has the necessary skill required to search for, compile, segregate, review, redact and produce the records, and earns more than the statutory cap of $25 per hour. In light of the Office’s response, I encourage Mr. Barry and the Office to communicate in order to facilitate producing records efficiently and affordably. Mr. Barry may consider narrowing the scope of his request to enable the Office provide the records more efficiently and affordably. The Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality 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 or municipality to produce records sought more efficiently and affordably). Please be advised the Office received approval to charge for segregation and redaction, to the extent the responsive records contain the exempt information. See SPR23/3079 Determination of the Supervisor of Records (December 26, 2023). Conclusion Accordingly, I will consider this administrative appeal closed. If issues remain after further communication, Mr. Barry may file an appeal. Sincerely, Manza Arthur Supervisor of Records cc: Anthony Barry