Singer, Leonard v. Office of the District Attorney - Plymouth District (SPR 20150841)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 31, 2015 SPRlS/841 Ms. Gail M. McKenna, Esq. Assistant District Attorney Plymouth County District Attorney's Office 32 Belmont Street Brockton, MA 02303 Dear Attorney McKenna: I have received the petition of Leonard M. Singer, Esq. appealing the response of the Plymouth County District Attorney's Office (DAO) to his requests for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Springer requested copies of exhibits entered into evidence and marked for identification at the trial of a specifically identified individual that took place in 1986. The DAO denied this request and Attorney Singer appealed. 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). In the DAO's response, dated October 6, 2015, you denied Attorney Singer's request, claiming that if any responsive records exist they are exempt from disclosure by statute. G. L. c. 4 § 7(26)(a); G. L. c. 278A, §§ 3, 7(b)(2), 16A and 17. This response was followed by a December 21, 2015 letter in which you memorialized a November 30, 2015 telephone conversation between you and Attorney Singer regarding the reasons for the DAO's denial of his request. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Gail M. McKenna, Esq. SPR15/841 Page Two December 31, 2015 Exemption (a) The DAO indicated its intent to withhold the records pursuant to G. L. c. 278A, §§ 3, 7(b)(2), 16A and 17 as it operates through Exemption (a). Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7(26)(a) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). G. L. c. 278A pertains to post-conviction access to forensic and scientific analysis. In an email to an attorney on my staff, you indicate, "my experience is that all the exhibits are boxed together including any potential biological matter." Further, you explain that, absent a court order, the DAO will not permit an individual to touch the records in order to preserve the defendant's rights to seek a motion for forensic or scientific analysis. However, the DAO has not explained whether any responsive records exist. In addition, the DAO has not explained, with specificity, how G. L. c. 278A permits the DAO to prevent access to any records that fall under G. L. c. 278A, including those responsive to Attorney Singer's request. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is hereby ordered to review its records to determine whether it possesses any records responsive to Attorney Singer's request. The Department is further ordered, within ten (1 0) days, to provide a written response to Attorney Singer discussing the existence and the public status of any such records. If the DAO maintains that any portion of the responsive records are exempt from disclosure it must provide to Attorney Singer 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. This response must also explain whether any responsive records exist.

Ms. Gail M. McKenna, Esq. SPR15/841 Page Three December 31, 2015 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, § 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 responsive/, cords. ours, nA.Wls cc: Leonard M. Singer, Esq.