Robert P. McGovern, Jr., Esq. v. Office of the District Attorney - Hampden District (SPR 20160677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams September 16, 2016 Supervisor ofR ecords SPR16/676, 16/677, 16/678 and 16/679 Mr. Robert McGovern, Jr., Esq. Legal Columnist Boston Herald 70 Fargo Street Boston, MA 02210 Dear Attorney McGovern: I have received your petition appealing the responses and nonresponses of four ( 4) of the Offices of the District Attorney in the Plymouth County (SPR16/676), Hampden County (SPR16/677), Northwestern District (SPR16/678) and Essex District (SPR16/679) each referred to in this order as DAO to your May 9, 2016 request for public records. G. L. c. 66, § lO(b); see also 950 C.M.R. 32.08(2). Specifically, you requested access to inspect or receive copies of all complaints made by each DAO to the Commission on Judicial Conduct (Commission) over the past five (5) years. Previous appeal This request was the subject of previous appeals. See SPR16/453, SPR16/454, SPR16/455, and SPR16/456 Determination of Supervisor of Records (July 19, 2016). In the July 19 determination, I found the DAOs failed to meet their burden to state whether any responsive complaints exist, and failed to rebut the presumption that any responsive complaints are public records, subject to redaction, in the custody of each responsive DAO. I ordered the DAOs to provide you with a revised response. While Plymouth County and Hampden County have provided second responses, all four (4) of the DAOs have refused to comply with my administrative order to state whether any complaints exist, and continue to deny your request for any complaints against the judiciary under G. L. c. 211C, § 6 and Commission on Judicial Conduct Rule 5. Once against again, you have petitioned this office. The Public Records Law 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 District Attorney for the OneAshburton Place, Room 1719, Boston, Massachusetts 0211Tir·lb17) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Robert P. McGovern, Jr., Esq. SPR16/676-16/679 Page 2 September 16, 2016 Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. Existence of responsive records A custodian's duty to respond to requests for information extends only to records that are in existence and in his custody. See G. L. c. 4, § 7(26) (defining "public records" as those non exempt materials made or received by a public employee). See also 950 C.M.R. 32.03 (defining "custodian" as the public official who has routine access to or control of public records). I find that each DAO has failed to meet its burden to state whether a responsive record exists. General Law c. 211 C, § 6; Commission against Judicial Conduct (CJC) Rule 5 The DAOs claim that the statute regarding judicial conduct and governing proceedings before the Commission against Judicial Conduct (CJC) applies to any complaints that the DAOs or its staff have within its custody and have filed with the CJC against members of the judiciary. The DAOs also claim that the very mention of how many complaints that the DAOs has filed within the past five (5) years violates the confidentiality provisions of G. L. c. 211C and its procedural Rule 5. This statute states: ... [A ]11 proceedings of the commission shall be confidential until there has been a determination of sufficient cause and formal charges have been filed with the supreme judicial court. The commission shall ensure that a procedure applicable to commission members, counsel and staff is established for enforcing confidentiality .... . . . Notwithstanding any other provision of this chapter to the contrary, proceedings pursuant to this chapter may remain confidential, even after a finding of sufficient cause, if the judge, the commission, and the complainant, if any, all concur ... G. L. c. 211C, § 6. Proceedings- Confidentiality; Waiver; Information Pertaining to Judicial Nomination The DAOs cite the CJC's procedural Rule 5 as controlling in the protection of confidentiality to withhold any complaints filed in their entirety, and also to protect DAOs from stating whether any complaints exist or how many have been filed within the last five (5) years. These rules govern the procedures of the Commission on Judicial Conduct in the exercise of its jurisdiction pursuant to Chapter 211 C of the General Laws. Rule 5 of the Commission on Judicial Conduct (R.C.J.C.) states: A. All proceedings prior to a determination of sufficient cause and the filing of formal charges shall be confidential.

Mr. Robert P. McGovern, Jr., Esq. SPR16/676-16/679 Page 3 September 16, 2016 B. Records, files, and reports of the Commission shall be confidential, and no disclosure shall be made ... R.C.J.C. Rule 5: Confidentiality After a review of both G. L. c. 211C, § 6 and R.C.J.C. Rule 5, the August 2016 responses of the Plymouth County and Hamden County DAOs and prior responses of all the DAOs regarding the prior appeals, SPR16/453-16/456, I find that the DAOs have still failed to meet their burden of stating if they have any judicial complaints in their custody and/or the number of judicial complaints filing with the Commission within the past five (5) years. Of note in the appeals with these four DAOs is the fact that out ofthe twelve DAOs and the Office of the Attorney General, each of these four DAOs are the only records custodian that have refused to inform Attorney McGovern whether it has any records, has filed any complaints and if so, how many complaints it has filed. It is also of note that the Commission publishes an annual report which provides statistical information regarding complaints filed each year with the Commission. Some of the statistical information includes the number of complaints filed, the case type, the subject matter of the type of court case, such as divorce, and outcome of the complaints. Order I find the DAOs have failed to properly respond to a request for public records, failed to comply with the July 19, 2016 administrative order, and failed to rebut the presumption that any responsive complaints are public records, subject to redaction. The DAOs were provided with not only Attorney Robert McGovern's request, but also an acknowledgment letter from this office dated August 26, 2016 providing an appeal number and notice that a second public records appeal had been opened by this office. Accordingly, each DAO is hereby ordered to review Attorney McGovern's request and provide a revised written response. A copy of any cover letter or additional 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. ~ y/s, ervisor of Records cc: Ms. Gail M. McKenna, Esq. Ms. Maida H. Wassermann, Esq. Ms. Cynthia M. Von Flatern, Esq. Mr. David F. O'Sullivan, Esq.