Wallace, Rachael v. Norfolk County District Attorney's Office (SPR 20261160)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 6, 2026 SPR26/1160 Tracey B. Kelly, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Kelly: On March 30, 2026, this office received your petition on behalf of the Norfolk County District Attorney’s 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, Rachael Wallace. G. L. c. 66, § 10(c); G. L.c. 66, § 10(d)(iv)(2). On March 16, 2026, Ms. Wallace requested the following: [1] Any incident reports, records, email communications, court records, investigative findings, in the matter of [identified individual] between January 5, 2023, and May 18, 2023[;] [2] Any incident reports, records, email communications, court records, investigative findings, in the matter of [identified individual] between January 5, 2023, and May 18, 2023[;] [3] Any incident reports, records, email communications (all email accounts), court records, investigative findings, produced as a work product of [identified individual], between January 5, 2023, and May 18, 2023[;] [4] Any incident reports, records, email communications, text message communications, court records, investigative findings, from [identified individual], between October 1 2022 and January 5, 2023. 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 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 Kelley, Esq. SPR26/1160 Page 2 April 6, 2026 (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. 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:

Tracey Kelley, Esq. SPR26/1160 Page 3 April 6, 2026 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. 280, 292 (2017). Redactions pursuant to G.L. c. 4, § 7 (26)(f) are necessary as the request is for all emails and reports drafted by two law enforcement officers and will likely contain 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.”). Further, these records could contain statements and identifying information of third party witnesses, necessitating redactions under 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”). The investigatory exemption (f) is designed to enable investigative authorities to provide assurances of confidentiality to their sources, encouraging them to share information openly and voluntarily. Rahim v. District Attorney for Suffolk District, 486 Mass. 544, 551 (2020) (“Among the reasons for exemption (f) are the prevention of the disclosure of confidential investigative 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” (citation and internal quotation omitted)). The investigatory exemption (f) may continue to apply beyond the conclusion of an investigation, serving to continually reassure “citizens that they may safely confide in law enforcement officials.” Globe Newspaper Co. v. Police

Tracey Kelley, Esq. SPR26/1160 Page 4 April 6, 2026 Commissioner of Boston, 419 Mass. 852, 862 (1995). 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). 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: [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. Wallace and the Office to communicate directly in order to facilitate providing records more efficiently and affordably. Ms. Wallace 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

Tracey Kelley, Esq. SPR26/1160 Page 5 April 6, 2026 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. Wallace 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: Rachael Wallace