O'Neill, Joshua v. Department of State Police (SPR 20260642)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2026 SPR26/0642 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Massachusetts Department of State Police 50 Maple Street Milford, MA 01757 Dear Ms. Mondello: I have received the petition of Attorney Joshua O’Neill appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 27, 2025, Attorney O’Neill requested: [1] Any and all records relating to or referring to any internal affairs investigations of [identified] Troopers especially but not limited to as they relate to the homicide investigation of [an identified individual] and the death of [an identified individual][;] [2] Any and all records relating to or referring to any internal affairs investigations of [identified Officers] as they relate to any investigation or any other misconduct undertaken in their official duties; [3] Any records of witness statements given in connection with any internal affairs investigation of [identified Officers][;] [4] Any and all records relating to or referring to the homicide investigation of [an identified individual] DOB 8/31/1989 including but not limited to any reports, interviews, meetings with informants, notes, tapes, and rewards to witnesses including promises in pending cases, money, and housing; [5] Records of any complaints issued in connection with any internal affairs investigation of [identified Officers][;] 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

Allison Mondello SPR26/0642 Page 2 March 5, 2026 [6] Records of any notes made in connection with any internal affairs investigation of [identified Officers][;] [7] Records of any interviews conducted made in connection with any internal affairs investigation of [identified Officers][;] [8] Any records referring to any internal investigations hearings involving [identified Officers]. The Department responded on January 9, 2026, providing a fee estimate. The Department provided a further response on February 13, 2026. Unsatisfied with the responses, Attorney O’Neill petitioned this office and this appeal, SPR26/0642, 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). 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. 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

Allison Mondello SPR26/0642 Page 3 March 5, 2026 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 records unless such segregation or redaction is required by law or approved by the Supervisor under a petition under G. L. c. 66, § 10(d)(iv). G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Current Appeal In his appeal petition, Attorney O’Neill objects to, “. . . the MSP’s improper denial of a requested fee waiver; and the MSP’s failure to produce responsive records that it has affirmatively identified as being within its own care, custody, and control.” The Department’s January 9th Fee Estimate and February 13th Response In its February 13, 2026 response, the Department assessed a fee of $1,286.25 to provide Attorney O’Neill with 5 hours of video footage and 789 pages of responsive records. The Department detailed its fee estimate as follows: Based on the nature of the requested records, the Department reasonably believes that they contain information, the redaction of which is required by law under M.G.L. c. 4, § 7, cl. 26(a). Segregation time is required for the Department to review the responsive records because these records are reasonably likely to contain information that is protected from public disclosure as required by law, including: • Home Addresses and Telephone Numbers of Public Safety Personnel G. L. c. 66, § 10B. The Department and other law enforcement agencies are involved in motor vehicle crashes throughout the Commonwealth. As such, their home addresses and telephone numbers could be contained in the crash reports. • Reports of Domestic Violence G. L. c. 41, § 97D. There are occasions, where the Department responds to motor vehicle accidents where domestic violence allegations are involved. Such information could be contained in the crash reports. • M.G.L. c. 6, § 172, the Criminal Offender Record Information (“CORI”) statute. The Department has reviewed crash reports that involve criminal charges and warrant arrests. Such reports may be used to charge an individually criminally, who may be the subject of pending criminal charges. • Juvenile names and personal identifying information; and records relating to investigations involving a juvenile are implicitly exempt from disclosure. Please see G.L. c. 119, §§1-84 (care and protection of children proceedings, specifically

Allison Mondello SPR26/0642 Page 4 March 5, 2026 prohibit the release of information relating to juveniles); G.L. c. 71, §34D (permits the Board of Education to adopt regulations limiting access to student records); G.L. c. 276, §100B (permits the Commissioner of Probation to seal records relative to child delinquency matters); G.L. c. 120, §21 (permits the Department of Youth Services Records to withhold records of a child delinquency commitment) and G.L. c. 209A, §8 (deems 209A records relating to minors as confidential and not subject to public release). The Department has reviewed crash reports that involve juveniles’ names and identifying information or misconduct. • Mental health or substance abuse information about a specific person is implicitly exempt from disclosure. Please see G.L. c. 111E, §18 (drug treatment records are confidential); G.L. c. 123, §36 (mental health patient treatment records “shall be private and not open to public inspection” except in instances involving a judicial order or attorney-patient review); Rep.A.G., Pub.Doc. No. 12 at 91 (1979) (names of patients receiving treatment for alcoholism exempt from disclosure). The Department has reviewed crash reports that involve an investigation into a party suffering from a mental health or substance abuse episode. • M.G.L. c. 214, § 1B, Right of Privacy. Crash reports may involve persons who provide the Department with their personal information such as their dates of birth, license numbers, social security numbers, etc. Some investigations are the product of mental health and/or substance abuse episodes by the complainant or member. As such, the records may contain private information that may result in an unwarranted invasion of privacy if disclosed. . . . This amount is based upon the following: with respect to the portion of the request concerning responsive video footage. The Department estimates that it would take approximately four (4) hours to review each hour of video footage, and to segregate and make the redactions as described above. The video footage identified as responsive to your request has approximately 5 hours of total footage. Accordingly, the Department estimates that it would take approximately 20 hours (5 x 4) to segregate and redact all the potentially responsive records. As the Department may not charge for the first four hours of work, the fee is further calculated as 16 hours (20 hours– 4 hours) times $25.00 (indicative of the wage of the lowest-paid employee capable of performing this work), which equals $400.00. This amount is based upon the following: with respect to the portion of the request concerning responsive records and Internal Affairs Files, the Department will be required to review 789 pages. The Department estimates, conservatively and in good faith, that it will spend an average of 3 minutes to review each of these items. Accordingly, the fee is calculated as follows: total items (789 pages)

Allison Mondello SPR26/0642 Page 5 March 5, 2026 times 3 minutes per item (3 x 789 = 2,367 minutes) equals approximately 39.45 hours (2,367/ 60 = 39.45 hours); the first four hours of work may not be charged (39.45 - 4 = 35.45 hours). 35.45 hours at a rate of $25/hour (which represents the hourly wage of the lowest paid employee capable of performing the task) results in a total cost of $886.25. Total cost for segregating and/or redacting the requested records = $1,286.25 ($400.00 + $886.25)[.] . . . In the Department’s February 13, 2026 response, the Department “. . . determined that the assessed fee associated with this request will not be waived” and stated: With regard to item number four of your request, please be advised, the Department has identified responsive records, (Case File: #2010-106-0232), however please note that, pursuant to G.L. c 38 s 4, the “district attorney or his law enforcement representative shall direct and control the investigation of [a] death” within his or her respective jurisdiction. In this instance, State Police Detectives assigned to the Essex County District Attorney’s Office investigated the subject case and the Essex County District Attorney’s Office prosecuted it. Please be advised, the Essex County District Attorney’s Office has indicated they will respond to this portion of your request. . . . Fee Waivers G. L. c. 66, § 10(d)(v) provides the following with respect to waiving a fee for the production of responsive records: the records access officer may waive or reduce the amount of any fee charged under this subsection upon a showing that disclosure of a requested record is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requestor, or upon a showing that the requestor lacks the financial ability to pay the full amount of the reasonable fee. Please be advised, although the Supervisor may encourage fees to be waived, the Supervisor may not mandate that a records access officer waive fees assessed for complying with a public records request; rather, as described above, the records access officer may waive or reduce the amount of any fee upon a showing of various factors. See G. L. c. 66, § 10 (d)(v); see also 950 C.M.R. 32.07(2)(k).

Allison Mondello SPR26/0642 Page 6 March 5, 2026 Reasonableness of the Fee Estimate Although the Department has estimated that the process of compiling, reviewing, and preparing responsive documents for production will take 59.45 total hours of employee time, the Department has not provided sufficient explanation of why this amount of employee time is necessary. Specifically, the Department must clarify how it requires 4 hours to review each hour of video footage, and 3 minutes to review each potentially responsive page. The Department must provide further details regarding the tasks involved and what each task entails, including the time it is allocating to compiling, segregating, redacting, and reproducing the requested records. For the reasons discussed above, I find the Department must revise its fee estimate or provide further explanation of how the fee assessed is expressly provided for and consistent with G. L. c. 66, § 10(d). This office encourages Attorney O’Neill and the Department to communicate further in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency 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 to produce the records sought more efficiently and affordably). Any revision to the request would result in the requirement to issue a revised fee estimate. Possession, Custody, or Control Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). With regard to Item 4 of Attorney O’Neill’s request, where the Department identified a responsive record in its February 13, 2026 response, it is unclear why the Department has not provided the responsive record. The Department must either must either provide the record, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the record. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”).

Allison Mondello SPR26/0642 Page 7 March 5, 2026 Conclusion Accordingly, the Department is ordered to provide Attorney O’Neill with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Attorney O’Neill may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Joshua O’Neill, Esq.