Folk, Jamie v. Attorney General's Office (SPR 20261137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 13, 2026 SPR26/1137 Hanne Rush, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Rush: I have received the petition of Jamie Folk, of Rodenfolk Productions, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 5, 2026, Mr. Folk requested “... the interviews with [identified individuals] to start? Also could you send an itemized list of all the interviews you have and approximate cost of each?” Prior Appeals This request was the subject of prior appeals. See SPR25/0201 Determination of the Supervisor of Records (February 4, 2026) and SPR25/0631 Determination of the Supervisor of Records (March 11, 2026). In my March 11th determination, it was my understanding that the AGO intended on providing a further response to Mr. Folk. The AGO responded on March 25, 2026. Unsatisfied with the response, Mr. Folk petitioned this office and this appeal, SPR26/1137, 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). 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

Hanne Rush, Esq. SPR26/1137 Page 2 April 13, 2026 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. Current Appeal In his April 6, 2026 appeal, Mr. Folk states, “[t]he person at the heart of this case is dead. This case is also over ten years old. The interviews in question are from 2014. I only asked for two interviews for people who were let go by the state. If there were going to be criminal charges based on these interviews, they would have already been charged by now.” The AGO’s March 25th Response In the AGO’s March 25, 2026 response, the AGO cited Exemption (a) of the Public Records Law to withhold the requested records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law. The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to

Hanne Rush, Esq. SPR26/1137 Page 3 April 13, 2026 a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its response, the AGO asserts that the records “are mandatorily withheld from disclosure in accordance with M.G.L. c. 4, § 7, cl. 26(a), as they constitute and/or contain information specifically and by necessary implication exempted from disclosure by various statutes, including M.G.L. c. 213, § 3, Mass. R. Crim. P. 5(d), M.G.L. c. 234A, § 8; M.G.L. c. 277, § 5; M.G.L. c. 268, § 13D (grand jury materials); and Trial Court Rule VIII (Uniform Rules on Impoundment Procedure). See also WBZ TV-4 v. Dist. Atty. for the Suffolk Dist., 408 Mass. 595, 599 (1990) (citations omitted) (‘The requirement that grand jury proceedings remain secret is deeply rooted in the common law of the Commonwealth’.).” The AGO further stated, Consistent with M.G.L. c. 213, § 3, the courts have adopted Mass. R. Crim. P. 5(d), which expressly prohibits the release of grand jury materials. Mass. R. Crim. P. 5(d) provides that “a person performing an official function relating to the grand jury may not disclose matters occurring before the grand jury except in the performance of his or her official duties or when specifically directed to do so by the court (emphasis added).” The grand jury secrecy echoed by the common law and the legislature and imparted by the court’s adoption of Mass. R. Crim. P. 5(d) is essential to law enforcement’s ability to investigate and determine whether there is probable cause to pursue a criminal charge. In response to public records requests made to the AGO for materials associated with and/or used during a grand jury investigation, the AGO has consistently indicated that such materials are, by application of M.G.L. c. 4, § 7, cl. 26(a), specifically and by necessary implication exempted from disclosure by statute. See SPR19-111 (the Supervisor of Records upheld the AGO’s withholding of grand jury materials under M.G.L. c. 4, § 7, cl. 26(a) and Mass. R. Crim. P. 5(d)). Furthermore, the AGO reiterates that the requested materials are subject to an impoundment order imposed by the court and cannot be disclosed to the public. See M.G.L. c. 213, § 3 and Trial Court Rule VIII; see also Commonwealth. v. Fremont Inv. & Loan, 459 Mass. 209, 213 (2011) (“[as to the question] whether the public records law constitutes a legislative determination that the public interest in access to government records overrides the traditional authority of courts to enter protective orders, and thus obligates the Attorney General to provide the documents to [the requester] … we conclude that it does not.”). For these reasons, the AGO is mandated by law to protect the confidentiality of the requested records. The judge may direct that an indictment be kept secret until after arrest. In such an instance, the clerk shall seal the indictment and no person may disclose the finding of the indictment except as is necessary for the issuance and execution of a warrant. A person performing an official function in relation to the grand jury may not disclose matters occurring before the grand jury except in the

Hanne Rush, Esq. SPR26/1137 Page 4 April 13, 2026 performance of his or her official duties or when specifically directed to do so by the court. No obligation of secrecy may be imposed upon any person except in accordance with law. Mass. R. Crim. P. 5(d). The order shall be entered on the docket, kept in the public file, and made available for public inspection. The order shall provide sufficient information for the public to identify the case caption, the case number, and to ascertain the grounds, duration, and scope of the impoundment. All information stating or disclosing the impounded material shall be omitted or redacted from the order prior to public inspection. A copy of the order shall be affixed to the envelope or other receptacle containing the court’s copy of the impounded materials. Trial Court Rule VIII, Rule 8(d). Based on the AGO’s response, I find that to the extent that the AGO claims that the requested materials are subject to an impoundment order imposed by the court and cannot be disclosed to the public, the AGO may permissibly withhold the requested records pursuant to Exemption (a) of the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. Please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Jamie Folk