Craig P. Shibley v. Office of the District Attorney - Worcester District (SPR 20161071)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public.Records Division Shawn A. Williams Supervisor of Records December 9, 2016 SPR16/1071 Lindsay Corcoran Public Records Officer Office of the District Attorney - Worcester County 225 Main St., G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Craig Shibley appealing the response of the Office of the District Attorney- Worcester County (DAO) to a request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Shibley requested a copy of an interview transcript related to a specifically identified murder investigation. Previous appeal This request was the subject of a previous appeal. See SPR16/157 Determination of the Supervisor of Records (March 11, 2016). In my March 11 determination I found it was unclear whether the DAO possessed the responsive transcript and that the DAO's February 26, 2016 response did not contain the requisite specificity to withhold the record under an exemption to the Public Records Law. I ordered the DAO to provide Mr. Shibley a response to the request, provided in a manner consistent with the order, the Public Records Law and its Access Regulations (Regulations). Having not received a response to the March 11 order, Mr. Shibley informed this office he seeks further action with respect to this matter. This appeal (SPRl 6/1071) was opened as a result. 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, § lO(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). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Lindsay Corcoran SPR16/1071 Page 2 December 9, 2016 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 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § IO( 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 ofrecords shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. Response to the March 11 order The DAO informed an attorney on my staff that it intends to provide a response to the March 11 order. This response must explain whether the DAO possesses any responsive records. See G. L. c. 4, § 7(26) (the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request). If the DAO intends to withhold any responsive information, it must explain, with specificity, how an exemption applies to the withheld or redacted portion of the responsive record. Flatley, 419 Mass. at 511. I understand an attorney on my staff provided you a copy of the file associated with SPR16/157 as well as the current appeal, SPR16/1071. Conclusion I will consider this appeal closed with the proviso that the DAO provide Mr. Shibley with a response to the request, provided in a manner consistent with this order and the March 11 order, the Public Records Law and its Regulations without delay. 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.

Lindsay Corcoran SPR16/1071 Page 3 December 9, 2016 In camera review In the alternative, in order to facilitate my review of the matter, the DAO may provide this office with unredacted copies of the responsive records for in camera review along with an explanation of its position regarding the applicability of any exemptions to the responsive record. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); see also G.L.c. 66, § 1. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of her duties has access to or control over records). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. cc: Craig Shibley