Feathers, Todd v. Office of the District Attorney - Middlesex District (SPR 20150304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords September 9, 2015 SPRlS/304 Ms. KerryAnne Kilcoyne, Esq. Assistant District Attorney Office of the Middlesex District Attorney 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kilcoyne: I have received the petition of Todd Feathers of the Lowell Sun appealing the response of Office of the Middlesex District Attorney (District Attorney) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Feathers requested a copy of an account balance sheet detailing deposits and expenditures from the District Attorney's special law enforcement trust fund from fiscal year 2010 to the present (date of the request). The District Attorney provided Mr. Feathers with a written, good faith estimate and claimed that certain ofthe information may be exempt under Exemptions (b), (f) and (n) ofthe Public Records Law. Mr. Feathers has appealed this response. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemptions (b), (f) and (n) Your Aprill3, 2015 response cites Exemptions (b), (f) and (n) ofthe Public Records Law, but your response fails to specifically explain what information may be exempt and the reasons why. I find that the District Attorney has failed to meet its burden. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. KerryAnne Kilcoyne, Esq. SPR15/304 Page Two September 9, 2015 Mr. Feathers has also questioned the written, good faith estimate of$1500.00 that was provided in your April 13th letter. You state that providing Mr. Feathers with the requested balance sheets will require thirty (30) hours of search and segregation time at fifty dollars ($50.00) per hour, and a five dollar cost to provide him with the records on a compact disk. It is my understanding that Mr. Feathers contacted the District Attorney to discuss this estimate and the exemption claims, however the District Attorney did not respond to his emails. While a custodian may charge for the cost of complying with a public records request, the fees must be reasonable and in compliance with the Public Records Access Regulations. G. L. c. 66, § 10(a); 950 C.M.R. 32.06. Accordingly, I find that the District Attorney has failed to meet its burden and has not overcome the presumption that the requested records are public. The District Attorney is hereby ordered, within ten (10) days of this order, to provide Mr. Feathers with the requested records. If the District Attorney maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Feathers a written explanation, with specificity, how a particular exemption applies to each record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If the District Attorney claims that there are any fees associated with this response a written, good faith estimate that specifically details the fees must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the respo sive records. Supervisor of Records cc: Mr. Todd Feathers