Kavanaugh, Esq., Lisa v. District Attorney of Suffolk County (SPR 20140221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 13,2014 SPR14/221 Ms. Lisa Kavanaugh, Esq. Committee for Public Counsel Services 21 McGrath Highway Somerville, MA 02143 Dear Attomey Kavanaugh: This office has received your petition appealing the response of the Suffolk County District Attomey's Office (District Attomey) to your March 20, 2014 request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(6). Specifically, you requested copies of records related to the prosecution ofFrederick Clay. In a March 27, 2014 response letter, Assistant District Attomey Allison Callahan stated that records responsive to your request were being withheld pursuant to Exemption (f) of the Public Records Law. In a May 9, 2014 telephone conversation with an attomey on my staff, ADA Callahan supplemented her original response by stating that responsive records were also being withheld pursuant to Exemption (d). The applicability of this exemption is first analyzed. Exemption (d) Exemption (d) applies to: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7 (26)( d) Exemption (d) is intended to avoid the disclosure of documents while policy positions are being developed and the deliberative process remains ongoing and incomplete. The OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Lisa Kavanaugh, Esq. SPR14/221 Page Two May 13,2014 deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Secretary ofthe Executive Office of Human Services, 403 Mass. 230, 237 n.8 (1988). Furthermore, the preparation of and involvement in litigation by a public body entails the development of"policy positions" by that body, positions that are subject to change and refinement throughout the litigation process. The withholding of public records is pern1itted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Martha's Vineyard Commission, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS, *10. It is my understanding that a motion for a new trial has been filed in Suffolk Superior Court that directly relates to the content of your records request. See Docket No. SUCR1983-30208. According to ADA Callahan, the motion for a new trial involves an area of developing law, an area where the District Attorney is in the process of addressing its policy position with respect to this change in case law. It is my finding that the content of your records request directly relates to this ongoing matter of litigation. The disclosure of responsive records could compromise the District Attorney's ongoing deliberative process. As a result, the District Attorney may permissibly withhold responsive records pursuant to Exemption (d). Therefore, an analysis as to the applicability of Exemption (f) to the requested records is not required. This administrative appeal is now closed. The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for you to .access the responsive records through the judicial process given that un-redacted copies of the records could be made available to you. Supervisor of Records cc: Ms. Allison Callahan, Esq.