Andrew W. Kilburn v. Office of the District Attorney - Suffolk County (SPR 20160037)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 28, 2016 SPR16/037 Ms. Dara Kesselheim, Esq. Assistant District Attorney Office of the Suffolk County District Attorney One Bulfinch Place, Suite 300 Boston, MA 02114-2921 Dear Attorney Kesselheim: I have received the petition of Andrew Kilburn appealing the response of Suffolk County District Attorney's Office (DAO) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Kilburn requested copies of Grand Jury minutes and a copy of a search warrant. In responses dated October 29, 2015 and January 21, 2016 the DAO denied his requests pursuant to Exemptions (a), the statutory exemption and (f), the investigatory exemption to the Public Records Law. Right ofA ccess In his petition Mr. Kilburn indicated he may have a unique right of access to the responsive records. Please note that the personal status of Mr. Kilburn 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. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Kilburn's status will have no bearing on whether the records are subject to mandatory disclosure under the Public Records Law. Grand Jury Minutes In the October 29 response, reiterated in a response dated January 21, 2016 you explained that the DAO is withholding copies of the grand jury minutes pursuant to Exemption (f) of the Public Records Law. Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Dara Kesselheim, Esq. SPR16/037 Page 2 January 28, 2016 would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26) Grand jury minutes and materials inherently relate to an investigation. Even where an investigation is closed, the minutes necessarily contain witness statements in the form of testimony. The grand jury process is dependent upon witnesses coming forward and testifying freely. The requirement of secrecy in grand jury proceedings is deeply rooted in Massachusetts common law. WBZ-TV 4 v. District Attorney for the Suffolk Dist, 408 Mass. 595, 599 (1990). The rationale for such secrecy is to encourage the full and free disclosure of information concerning the commission of a crime, and to allow the utmost freedom of deliberation to the grand jury. Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211,219 n.10 (1979). Disclosure of grand jury minutes and materials would defeat the purposes of grand jury secrecy. Accordingly, the DAO may withhold grand jury minutes and materials pursuant to Exemption (f). Search Warrant In your January 21, 2016 response you cite to the: Seizure, Custody and Disposition of Articles; and the Time for Return of Warrant statutes and explain that search warrants revert to the court's control at the conclusion of an investigation or trial. See G. L. c. 276, § 3; G.L. c. 276, § 3A. Accordingly, whereas the DAO stated any responsive warrant has so reverted, I find the DAO has no record responsive to this portion of Mr. Kilburn's request. Conclusion I find the DAO properly withheld responsive Grand Jury minutes. Further, I find the DAO properly responded with respect to a request for a specific warrant that had reverted to the control ofthe original court. Accordingly, this admi 1st tiv appeal is closed. illiams cc: Mr. Andrew Kilburn