Kristina Rex v. Norfolk County District Attorney's Office (SPR 20250980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2025 SPR25/0980 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Kristina Rex, of WBZ-TV, CBS Boston, appealing the response of the Norfolk 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 March 4, 2025, Ms. Rex requested the following: Last week in a hearing in the Brian Walshe case, NDAO prosecutor Greg Connor referenced an email within the NDAO regarding a status change to the federal investigation that has been ongoing for at least a year and a half now… I’m hoping under the state’s public records law to receive a copy of that email. On March 7, 2025, Ms. Rex requested the following: Any communications (whether email, text, phone call/log, voicemail, letter, or other method) between the US Attorney’s Office and the Norfolk County District Attorney’s Office between February 18 and February 20. The Office responded to both requests on April 1, 2025. Unsatisfied with the Office’s responses, Ms. Rex petitioned this office, and this appeal, SPR25/0980, 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 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. SPR25/0980 Page 2 April 25, 2025 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 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. Current Appeal In her appeal petition, Ms. Rex argues the following: I ... would like to formally appeal the withholding of certain records from the Norfolk District Attorney’s Office for this public records request. . . . It is WBZ’s understanding that the federal investigation in question involves the 2022 death of John O’Keefe, the Mass. State Police, and the NDAO. Given that these emails were referenced in open court, WBZ does not see reason they cannot be accessed via public records and respectfully appeals their withholding. The Office’s April 1st Responses In its April 1, 2025 responses, the Office provides numerous responsive records in redacted form, and cites Exemption (c) of the Public Records Law for redacting the records. See G. L. c. 4, § 7(26)(c). The Office also cites Exemptions (d) and (f) of the Public Records Law for withholding other responsive records, and indicates that the records are the subject of pending litigation. See G. L. c. 4, § 7(26)(d), (f). Regarding the March 4th request, the Office explains the following: A record responsive to your request has been withheld as it contains information relevant to an active and ongoing criminal prosecution and includes attorney work product relating to matters with active litigation. See G.L. c. 4, § 7 (26)(d) (deliberative process exemption); DaRosa v. City of New Bedford, 471 Mass. 446, 448 (2015) (work product, as codified in Mass. R. Civ. P. 26, is within the scope of G.L. c. 4, § 7 (26)(d)); G.L. c. 4, § 7 (26)(f) (“investigatory materials

Brandon P. Hunt, Esq. SPR25/0980 Page 3 April 25, 2025 necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest”); see also Commonwealth v. Karen Read, Docket No. 2282CR00117 (jury trial scheduled to begin April 1, 2025); Mass. R. Prof. C. 3.6 (a lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter). Regarding the March 7th request, the Office explains the following: Additional email correspondence responsive to your request was withheld as they contain information relevant to an active and ongoing criminal prosecution and because they include attorney work product relating to matters with active litigation. See G.L. c. 4, § 7 (26)(d) (deliberative process exemption); DaRosa v. City of New Bedford, 471 Mass. 446, 448 (2015) (work product, as codified in Mass. R. Civ. P. 26, is within the scope of G.L. c. 4, § 7 (26)(d)); G.L. c. 4, § 7 (26)(f) (“investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest”); see also Commonwealth v. Karen Read, Docket No. 2282CR00117 (jury trial scheduled to begin April 1, 2025); Mass. R. Prof. C. 3.6 (a lawyer shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: The Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: The public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the trial court’s docket and verified that criminal litigation, relating to the records at issue in Ms. Rex’s requests, is active and ongoing in the Norfolk Superior Court. See Commonwealth v. Karen Read, (Norfolk Superior Court, Docket No. 2282- CR-00117). In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Brandon P. Hunt, Esq. SPR25/0980 Page 4 April 25, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Kristina Rex