Griesbach, Patrick v. Office of the District Attorney - Northwestern District (SPR 20150442)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords July 23, 2015 SPRlS/442 Ms. Cynthia M. Von Flatern, Esq. Northwest District Attorney's Office One Gleason Plaza Northampton, MA 01 060 Dear Assistant District Attorney Von Flatern: I have received the petition of Peter Griesbach, on behalf of Caesar and Napoli P. C., appealing the response ofNorthwest District Attorney's Office (DAO) to her request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, on April22, 2015, James C. Naploi, Esq., requested copies of records related to a specifically name victim of an automobile accident which occurred at 333 East Main Street, Orange Massachusetts, on or about February 1, 2015. In a response dated May 8, 2015 the DAO denied this request in its entirety citing to Exemptions (c) and (f) ofthe Public Records Law. G. L. c. 4, § 7 (26) (c), (f). In the request to the DAO Attorney Napoli explained that the firm of Caesar and Napoli P. C. represent the individual subject to this public records request. Please note that the personal status of their client in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. ChiefofPolice ofLexington, 371 Mass. 59,64 (1976). 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). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response by the DAO did not contain the specificity required in a denial of access to public records. Accordingly, DAO is advised that OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Cynthia M. Von Flatern, Esq. SPR15/442 Page Two July 23, 2015 to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to each of the requested records. The DAO's response also neglected to explain why the responsive records must be withheld in their entirety. I find the DAO has failed to meet its burden of specificity in denying access to public records. Accordingly, whereas the DAO has not overcome the presumption that the requested records are public, it is hereby ordered, within ten (10) days ofthis order, to provide the requested records. If the DAO maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Griesbach and Attorney Napoli 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 there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 10(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, yo must provide the responsive records. r yours 2MnS upervisor of Records cc: Mr. Patrick Griesbach