Sharkey, Kyle v. Norfolk County District Attorney's Office (SPR 20260602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 6, 2026 SPR26/0602 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Kyle Sharkey appealing the response of the Norfolk County 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 February 4, 2026, Mr. Sharkey requested, “[a]ll sent or received email correspondence including any attachments between individuals noted below:” [1] Closed- [an identified individual] Norfolk County Docket #2282CR00117[;] [2] Closed- [an identified individual]-[an identified individual] Norfolk County Docket #2482CR00043[;] Date Range Jan 29, 2022-Present[;] [3] In good faith I have attached one email that has been publicly disclosed. Your records should show that this email was sent to [an identified individual]. Upon information and belief more exist. Which the two noted individuals are in communication[.] Mr. Sharkey submitted three successive public records requests to the Office. Each request referenced the same five identified individuals with the to/from being a different person in each of the three successive public records requests. The Office responded on February 19, 2026. Unsatisfied with the response, Mr. Sharkey petitioned this office and this appeal, SPR26/0602, 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 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. SPR26/0602 Page 2 March 6, 2026 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 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 19th Response In its February 19, 2026 response, the Office stated, The Norfolk District Attorney’s Office (NDAO) received three successive public records requests from you on February 4, 2026, each received within a ten-minute interval. This letter responds to each of those requests, in which you seek, pursuant to G.L. c. 66, § 10, email correspondence concerning either Commonwealth v. Karen Read, 2282CR00117, or Commonwealth v. Aidan Kearney, 2482CR00043. The requested email correspondence involves the following identified [three] participants and you provided their email addresses. You further limited the scope of your request to correspondence between those individuals and any of the following [five identified individuals]. To the extent your request would require a search of the work email accounts of [five identified individuals], the NDAO does not have possession, custody, or control of those accounts or emails maintained therein. To the extent that emails exist as discovery in Commonwealth v. Aidan Kearney, docket numbers 2382CR00313 and 2582CR00088, those records are the subject to an active protective order. See Commonwealth v. Aidan Kearney, 2382CR00313, Paper 55, 91. The Court, found that good cause exists to limit dissemination of these materials. See Kearney, supra, Paper 100 (the Court denied the defendant’s motion to release documents from impoundment). Such materials are therefore properly withheld from public disclosure, as their release would contravene the Court’s orders, risk interference with ongoing judicial proceedings, and undermine the confidentiality interests the orders were intended to protect. 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 would probably so prejudice the possibility of effective law enforcement that such

Brandon P. Hunt, Esq. SPR26/0602 Page 3 March 6, 2026 disclosure would not be in the public interest”); Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 219-220 (2011) (public records law did not abrogate judicial protective order prohibiting disclosure of documents parties deemed confidential, and thus records requester was not automatically entitled to disclosure of records subject to the order). Also, in its February 19, 2026 response, the Office stated, The records are also exempt from public disclosure because they pertain to an active and ongoing criminal prosecution… these records identify sources of information and include information provided by witnesses under circumstances in which confidentiality was reasonably expected, and the ability to preserve that confidentiality is essential to effective law enforcement. The investigatory exemption serves, in part, to permit investigative authorities to provide assurances of confidentiality to such sources, thereby encouraging the open and voluntary sharing of information necessary to the investigation and prosecution of criminal matters… the records, which may contain potential evidence and statements from a witness, if disclosed could amount to a premature disclosure of a piece of Commonwealth’s case prior to trial and “would probably so prejudice the possibility of effective law enforcement. The Office cited Exemption (f) of the Public Records Law to withhold records responsive to the request. Additionally, in its February 19, 2026 response, the Office stated, “[r]ecords were also withheld to the extent they relate to grand jury proceedings and constitute grand jury materials, which are protected from public disclosure in order to preserve the confidentiality and integrity of the grand jury process.” Current Appeal In his appeal, Mr. Sharkey states the following: [1] Massachusetts State Police (MSP) assigned to the Norfolk District Attorney’s office (Detective Unit). All @mass.gov Trooper emails included “are or used” to be stationed at the Norfolk District Attorney’s office Detective Unit. The majority of noted Troopers have been “rehomed”, disciplined and or terminated. The NDAO should still have the email correspondence in the system[;] [2] The Norfolk District Attorney office did not even address [an identified individual] emails. [An identified individual] “is or was” and ADA at the NDAO[;] [3] [An identified individual] documents- Closed/ [an identified individual]- [an identified individual] Norfolk County Docket #2482CR00043 I am not requesting any documents from the 2 case numbers that the NDAO decided to insert into the reply[;]

Brandon P. Hunt, Esq. SPR26/0602 Page 4 March 6, 2026 [4] [An identified individual] case is closed. Upon information and belief The Norfolk District Attorney office tried to use it as a “fallback” for not releasing sidebars. That was brought to Suffolk County Civil Court in a Lawsuit by [an identified individual], to which was resolved and they are slowly being released. Plus they have released other documents pertaining to this case during its “NOD I” release and other FOIA request[.] 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: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. This office has reviewed the dockets of the trial court and verified that the requested records are the subject of active and ongoing litigation in Plymouth and Norfolk Superior Courts respectively. See Paul O’Keefe Individually and Personal Rep of the Estate of John Joseph O’Keefe III et al v. C&C Hospitality, LLC d/b/a C.F. McCarthy’s, Karen Read, et al, (Plymouth Superior Court Docket No. 2483CV00692. See also Commonwealth v. Kearney, Aiden, Timothy, Norfolk Superior Court, Docket No. 2382CR00313. In light of the pending matters, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Additionally, I decline to opine on the applicability of Exemption (f) of the Public Records Law to the requested records. Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Kyle Sharkey