Czerwonka, Esq., Joseph v. Office of the District Attorney - Norfolk District (SPR 20150844)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 31,2015 SPRlS/844 Ms. Varsha Kukafka, Esq. Assistant District Attorney Office of the Norfolk County District Attorney 46 Shawmut Road Canton, MA 02021 Dear Attorney Kukafka: I have received the petition of Joseph J. Czerwonka, Esq. appealing the response of the Office of the District Attorney Norfolk District (DAO) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Czerwonka requested copies of records related to a "shooting death" that occurred on May 16, 2015. The DAO provided redacted copies ofrecords to Attorney Czerwonka, and he objected. The DAO subsequently provided unredacted copies of the records, given the unique relationship between Attorney Czerwonka and the deceased. The DAO maintained its denial of access to photographs that depict the deceased, pursuant to the privacy exemption to the Public Records Law. G. L. c. 4, § 7 (26) (c). Both in his request and petition Attorney Czerwonka discloses the personal nature of his association with the victim depicted in the photographs. Please note that the personal status of Attorney Czerwonka in the matter in question does not afford him 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. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). As such, while his unique relationship to the deceased provides a right of access to some records, a validly stated exemption will permit withholding of records that are deemed not available to the general public. The DAO cited Exemption (c) to justify withholding the photographs, but this response lacked the specificity required to support such withholding. Exemption (c) contains two independent clauses, the first of which relates to personnel or medical information. The second clause relates to information the disclosure ofwhich would constitute an invasion of privacy. The second clause is inapplicable to persons who are deceased; however, the rights under the first clause continue after death. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Varsha Kukafka, Esq. SPR15/844 Page Two December 31, 20 15 The Public Records Law states, "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); 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. To comply with the Public Records Law and its Regulations a records custodian 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. While it is apparent that the photos depict the deceased, including the medical state of the deceased, the DAO response does not explain this fact with the required specificity. Accordingly, to meet the specificity requirement the DAO is hereby ordered, within ten (10) days of this order, to provide Attorney Czerwonka with a revised response, prepared in a manner consistent with the Public Records Law, its Access Regulations and this order. If the DAO maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Attorney Czerwonka 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 .rna. us. 1 1ams ervisor of Records cc: Mr. Joseph J. Czerwonka, Esq.