Jeffrey L. Baler, Esq. v. Norfolk County District Attorney's Office (SPR 20170065)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 25, 2017 SPR17/065 Varsha Kukafka, Esq. Assistant District Attorney Office of the District Attorney-Norfolk District 45 Shawmut Road Canton, MA 02021 Dear Attorney Kukafka: I have received the petition of Jeffrey L. Baler, Esq. appealing the response of the Office of the District Attorney-Norfolk District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Baler requested several records related to a specifically identified individual and a specified Norfolk Superior Court case. In responses dated October 21, 2016, November 14, 2016, and December 27, 2016, the DAO denied access to records under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), as well as Exemptions (c) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f); G.L. c. 6, § 167. Purpose of request In his petition, it appears that Attorney Baler is requesting access to the requested records on behalf of a client. Further, Attorney Baler provided the DAO with a "CORI waiver" in an attempt to obtain responsive records. Please note that the reason for which a requestor seeks access to or a copy of a public record 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 requestors. Access to a record 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, Attorney Baler's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, 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

Varsha Kukafka, Esq. SPR17/065 Page 2 January 25, 2017 this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Baler may wish to consider another means of seeking to obtain any existing responsive records. 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 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, § 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 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. The DAO's responses In its responses to Attorney Baler, the DAO explains it is withholding the entirety of the responsive records under the CORI Act as it operates through Exemption (a), as well as Exemptions (c) and (f). Based on these responses, it is unclear how the responsive records, in their entirety, fall within an exemption claimed by the DAO. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are

V arsha Kukafka, Esq. SPR17/065 Page 3 January 25, 2017 not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). In the DAO's December 27 response, you explain it is the DAO's position that "the CORI waiver does not oblige this Office to release information that is covered under both CORI and the exemptions cited in our previous responses to your request regarding biological evidence, particularly concerning the victim." Please be advised that questions, interpretations and opinions concerning the CORI Act and its Regulations are within the authority of the Department of Criminal Justice Information Services (DCIJS) and should be directed to DCJIS. I understand an attorney on my staff contacted you and you indicated the DAO would provide a supplemental response to the request. Conclusion Accordingly, I will consider this appeal closed with the proviso that the DAO provide Attorney Baler with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) business days. 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. Sincerely, fJJJut4~L~ Rebecca S. Murray Supervisor of Records cc: Jeffrey L. Baler, Esq.