Sharkey, Kyle v. Norfolk County District Attorney's Office (SPR 20260986)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2026 SPR26/0986 Tracey B. Kelly, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Kelly: On March 18, 2026, this office received your petition on behalf of the Norfolk County 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, Kyle Sharkey. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On March 9, 2026, Mr. Sharkey requested the following: [1] All emails sent or received by [identified individual] from (i) January to May 2022 and (ii) May to December 2022; [2] All emails sent or received by [identified individual] from (i) January to June 2023 and (ii) July to December 2023; [3] All emails sent or received by [identified individual] from (i) January to June 2024 and (ii) July to December 2023; and [4] All emails sent or received by [identified individual] from January to June 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 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. SPR26/0986 Page 2 March 24, 2026 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. 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: 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

Tracey B. Kelly, Esq. SPR26/0986 Page 3 March 24, 2026 for the Ethical Treatment of Animals, Inc. v. Dep’t. of Agric. Res., 477 Mass. 280, 292 (2017). Redactions pursuant to G.L. c., § 7 (26)(f) are necessary as it appears there are records that pertain to active and ongoing criminal prosecutions, the disclosure of which would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G.L. c. 4, § 7 (26)(f). The records, which contains potential evidence and statements from witnesses, if disclosed could amount to a premature disclosure of a piece of Commonwealth’s case prior to the resolution of the matters and “would probably so prejudice the possibility of effective law enforcement.” G.L. c. 4, § 7 (26)(f); cf. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976) (among the purposes of exemption (f) are “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigatory techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.”). In light of the Office’s petition, I find that 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). 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. I encourage the parties to communicate further to enable the Office to provide records in an efficient and affordable manner. Please note, Mr. Sharkey 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: Kyle Sharkey