Eric B. Mack, Esq. v. Bristol County District Attorney's Office (SPR 20242964)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2024 SPR24/2964 Monica Carreiro Records Access Officer Bristol County District Attorney’s Office 218 South Main Street, Suite 101 Fall River, MA 02721 Dear Ms. Carreiro: On October 31, 2024, this office received your petition on behalf of the Bristol 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, Eric Mack, Esq. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On October 17, 2024, Attorney Mack requested: [1] The office’s Brady list, which refers to a list of law enforcement officers who have credibility issues or other concerns that might need to be disclosed to defendants in criminal cases[;] [2] All Brady information, meaning all records concerning individual law enforcement officers that might need to be, or have been, disclosed to defendants in a criminal case from January 1, 2020 to the present[;] [3] All communications with criminal defendants and/or defense counsel advising them of the existence of Brady information or an officer’s placement on a Brady list from January 1, 2020 to the present[;] [4] All communications with police departments or individual officers regarding the existence or disclosure of Brady information or an officer’s placement, or potential placement, on a Brady list from January 1, 2020 to the present[;] [5] All disclosures issued based on the information provided to you in the attached Exhibit A, including, but limited to, any disclosures related to [four identified individuals][.] 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

Monica Carreiro SPR24/2964 Page 2 November 4, 2024 In an email to this office and the Office dated October 31, 2024, Attorney Mack objected to the Office’s petition. 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 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 understanding 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

Monica Carreiro SPR24/2964 Page 3 November 4, 2024 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 requests, “that a fee of $1,675.00 for the search of the e-mails and $36,800.00 for the search of the case files be allowed…” and provides the following information in support of its request: [T]his office will need to spend time redacting information that is exempt from disclosure under the Public Records Law, as many of the responsive records are expected to contain criminal offender record information (CORI). Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 262 (2020) citing G.L. c. 6, §§ 167 et seq. See G.L. c. 4, § 7, cl. 26(a) (records are specifically or by necessary implication exempted from disclosure by statute). For example, communications with criminal defendants and/or defense counsel in paragraph is expected to specifically identify criminal defendants whose identities are protected from disclosure by the CORI statute and clause 26(a). Please be advised, records custodians may assess fees for time spent segregating or redacting records where such segregation or redaction is required by law. See 950 C.M.R. 32.07(2)(d) (stating that fee for segregation or redaction is permissible when approved by Supervisor or when required by law. Where the Office only seeks to assess fees as required by law under Exemption (a) of the Public Records Law, I find it unnecessary to opine on whether the Office may assess fees for segregating and redacting the records. Conclusion As described above, I find it is unnecessary to opine on the Department’s petition for permission to charge for time spent segregating or redacting responsive records. Attorney Mack may appeal the Office’s fee estimate within ninety days. See 950 C.M.R. 32.08(1). Please note, Attorney Mack 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: Eric Mack, Esq.