Charlie McKenna v. Norfolk District Attorney's Office (SPR 20252000)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2025 SPR25/2000 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: On July 10, 2025, this office received your petition on behalf of the Norfolk District Attorney’s Office (Office) requesting permission to assess fees for time spent segregating and 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, Charlie McKenna, of MassLive. G. L. c. 66, § 10(c); G. L. c. 66, § 10(d)(iv)(2). On June 25, 2025, Mr. McKenna requested “[a]ny and all communications between the district attorney’s office the U.S. Attorney’s office for the District of Massachusetts from Jan. 21, 2025 to June 25, 2025[.]” Open Appeal This request is currently the subject of an appeal. See SPR25/2017. A determination will be issued separately within ten business days of receipt of the appeal. 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). 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 Hunt, Esq. SPR25/2000 Page 2 July 17, 2025 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. Petition to Assess Fees In its petition, in addition to charging for segregation and redaction required by law pursuant to Exemption (a) of the Public Records Law, the Office requests to charge for segregation and redaction under Exemptions (c), (d), (f), (n), (o), and (p) and provides the following in support of its request: The review process of the 1,190, including an individualized assessment of each item for responsiveness, whether it is subject to a federal protective order, application of any necessary redactions pursuant to G.L. c. 4, § 7(26), and organization of the responsive materials into redacted PDF format suitable for release... The undersigned records access officer reasonably anticipates that among those

Brandon Hunt, Esq. SPR25/2000 Page 3 July 17, 2025 emails, there will be sensitive information that necessitates redactions extending beyond the statutory requirements outlined in G.L. c. 7, §(26)(a). . . . Approval to charge for the extra time involved in these redactions would ensure thorough protection of sensitive information. Based on the information provided in its fee 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 segregation or redaction. 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 segregation and redaction. Conclusion Accordingly, I find that to the extent the responsive records contain the exempt information as described above, the Office may assess a fee for segregation and redaction. I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. McKenna 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: Charlie McKenna