Bethune, Meredith v. Norfolk District Attorney's Office (SPR 20260851)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 17, 2026 SPR26/0851 Tracey B. Kelly, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Kelly: On March 11, 2026, this office received your petition on behalf of the Norfolk 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, Meredith Bethune. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On February 24, 2026, Ms. Bethune requested, “[a]ll correspondence, including emails and attachments, between [identified individual] and any employee or representative of the Norfolk Country DA’s Office sent between April 23 through December 31, 2025.” Petition to Assess Fees – Agencies 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 of Records (Supervisor) 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). 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 an agency’s petition to allow the agency to charge for time spent segregating or redacting 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 determination that this request was not made for a commercial purpose. 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

Tracey B. Kelly, Esq. SPR26/0851 Page 2 March 17, 2026 The second prong of the test is whether the fee represents an actual and good faith representation by the agency 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; 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. Current Petition In its petition, the Office requests “approval to charge for time spent segregating and redacting records responsive to the request.” In support of its petition, the Office provides the following information: The undersigned records access officer reasonably anticipates that among the 139,995 pages, there is sensitive information that necessitates redactions extending beyond the statutory requirements outlined in G.L. c. 7, §(26)(a). These additional redactions are likely under G.L. c. 4, §§ 7(26) (c), (d), and (f). Approval to charge for the extra time involved in these redactions would ensure thorough protection of sensitive information. Redactions pursuant to G.L. c. 4, § 7 (26)(c) are necessary to protect the privacy interests of third parties. The responsive materials may contain sensitive personally identifiable information, including unpublished email addresses and telephone numbers. The privacy interests of the third parties outweigh any public interest in the information, as these details bear no relation to assessing whether public servants are carrying out their duties lawfully and efficiently. See People for the Ethical Treatment of Animals, Inc. v. Dep’t. of Agric. Res., 477 Mass.

Tracey B. Kelly, Esq. SPR26/0851 Page 3 March 17, 2026 280, 292 (2017). In addition, redactions pursuant to G.L. c. 4, § 7 (26)(d) and (f) are required as the materials may contain attorney work product, including communications or notes that reflect legal theories, case evaluations, mental impressions, or litigation strategy. Such details will be redacted or withheld. See G.L. c. 4, § 7(26)(d) (exempts from disclosure “inter-agency or intra-agency memoranda or letters relating to policy decisions being developed by the agency”); 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”); Mass. R. Crim. P. 14.2(f); DaRosa v. City of New Bedford, 471 Mass. 446, 459-460 (2015) (attorney work product falls within scope of exemption (d)); see also Attorney General v. Facebook, Inc., 487 Mass. 109, 127 (2021) (“The greatest protection is provided to opinion work product, or work product that conveys the ‘mental impressions, conclusions, opinions, or legal theories of an attorney’” (citation omitted); Commissioner of Revenue v. Comcast Corp., 453 Mass. 293, 314, 319 (2009) (disclosure of opinion work product only appropriate in rare circumstances). In light of the Office’s 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 redaction or segregation. 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 the segregation and redaction of such exempt material. See G. L. c. 66, § 10(d)(iv). Appropriate Definitions, Parameters, and Time Frames In Friedman v. Div. of Admin. Law Appeal and Bureau of Special Educ. Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Div of Admin. Law Appeal and Bureau of Special Educ. Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that:

Tracey B. Kelly, Esq. SPR26/0851 Page 4 March 17, 2026 [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. This office encourages Ms. Bethune and the Office to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. Bethune may consider narrowing the scope of her request to enable the Office to provide the records more efficiently and affordably. The Office must use its superior knowledge of the records to suggest any potential reasonable modifications to the request. 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. Conclusion Accordingly, to the extent the responsive records contain the exempt information as described above, the Office may assess a fee for segregation and redaction. Please note, Ms. Bethune 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: Meredith Bethune