McKenna, Esq., James v. Office of the District Attorney - Northwestern District (SPR 20150594)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/594 Ms. Cynthia M. Von Flatern, Esq. Northwestern District Attorney's Office One Gleason Plaza Northampton, MA 01060 Dear Attorney Von Flatern: I have received the petition of James P. McKenna, Esq. appealing the response of the Northwestern District Attorney's Office (DAO) to his September 10, 2014 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney McKenna requested four (4) categories of records relating to certain evidence that was maintained at the Massachusetts Drug Laboratory in Amherst. 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 Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Previous Determination and Subsequent Correspondence This request was the subject of a previous appeal. See SPR14/611 Determination of the Supervisor of Records (November 26, 2014). In my November 26 Determination, I ordered the DAO to provide Attorney McKenna with copies of all responsive records, or provide an explanation that will satisfy the burden of a government records custodian in responding to a request for public records. There have been several correspondences between Attorney McKenna, DAO, and this office subsequent to my November 26 Determination. In a letter to this office dated January 20, 2015, Attorney McKenna informed this office that he now is only contesting DAO's response to two requests, referred to in his appeal as Request 3 and Request 4. Accordingly, I will consider the issues related to Request 1 and 2 closed. 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. SPR15/594 Page Two December 7, 2015 Attorney McKenna's Request 3 Attorney McKenna's Request 3 seeks copies of records that "that reference or describe any investigation into the extent to which [a specifically identified former chemist] impaired the Commonwealth's evidence or the internal assessment." In a letter to Attorney McKenna dated December 12, 2014, you indicate you provided two responsive emails. You claim the remaining responsive records are exempt from disclosure under Exemption (d) ofthe Public Records Law. G. L. c. 4, § 7(26)(d). Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause 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 deliberative process is insulated from scrutiny only until such time as the process is completed. Babets v. Sec'y of the Exec. Office of Human Servs., 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 permitted in so far as they concern the ongoing litigation or administrative proceedings of that public body. See Lafferty v. Martha's Vineyard Comm'n, Superior Court, 17 Mass. L. Rep. 501; 2004 Mass. Super. LEXIS, *10. In his January 20, 2015 letter Attorney McKenna expresses concern that the application of Exemption (d) may be presumed to be indefinite in this instance. The Public Records Law addresses only what the status is of a given record at the time of the request. Based upon both the written correspondence as well as the explanation provided to my staff, I find DAO has met its burden of explaining how the remaining emails are properly withheld at this time pursuant to Exemption (d) as such records may relate to ongoing deliberations. I do find, however, the DAO has failed to address Attorney McKenna's query as to whether any responsive records exist that consist of "reasonably completed factual studies or reports." As stated in the exemption, such records, or portions of records may not be withheld pursuant to Exemption (d).

Ms. Cynthia M. Von Flatern, Esq. SPR15/594 Page Three December 7, 2015 Request 4 Attorney McKenna's Request 4 seeks copies of records that "that contain any information that, as referenced in the document attached as Exhibit 1, was shared with other affected agencies to ensure the rights of all defendants were protected." In your January 8 letter you state that the DAO "does not believe" it has records responsive to this request; though, you further explain that given what you refer to as a "vague request," it is unclear what records Attorney McKenna seeks. Whereas it is unclear what, if any records the DAO has that are responsive to this request, I decline to opine upon any exemption claims made by the DAO related to Request 4. Conclusion Out of the four categories of records requested by Attorney McKenna, he now only requests the response to Request 3 and Request 4. I find the DAO has met its burden to withhold any deliberative records responsive to Request 3. I further find that, based on its reading of Request 4, the DAO believes it may have no records responsive to Request 4. The DAO has not yet provided an explanation as to whether it possesses any "reasonably completed factual studies or reports" responsive to Request 3. I understand you informed an attorney on my staff that you will provide a supplemental response to Attorney McKenna regarding this matter. I will, therefore, consider this administrative appeal closed, with the proviso that the DAO respond to Attorney McKenna within ten (10) days ofthe date of this determination to explain whether it possesses any "reasonably compl ted factual studies or reports" responsive to Request 3. cc: Mr. James P. McKenna, Esq.