Murat Erkan, Esq. v. Office of the District Attorney - Worcester District (SPR 20170270)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 15, 2017 SPR17/270 Lindsay Corcoran Records Access Officer Office of the Worcester County District Attorney Worcester Trial Court 225 Main Street, G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Murat Erkan, Esq. appealing the response of the Office of the Worcester County District Attorney (District Attorney) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Erkan requested a copy of police reports, laboratory analysis reports, witness statements, motions, memoranda, court fillings and any other document regarding a specifically-named criminal defendant. The District Attorney denied the requested records pursuant to Exemption (f) of the Public Records Law. Attorney Erkan appealed. Appeal to the Supervisor It is my understanding that Attorney Erkan did not provide you, as the District Attorney's Records Access Officer (RAO), with a copy of his petition to the Supervisor of Records (Supervisor) requesting an administrative appeal. A Public Records Division attorney contacted you by telephone and email regarding this appeal, however, was unable to connect with you directly. It is my understanding that a copy of the appeal file was provided to you via email by an attorney with the Public Records Division. Attorney Erkan is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1 )(h) (2017 ed.). 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, § lOA(d); 950 C.M.R. 32.03(4). "Public 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 SPR17/270 Page 2 March 15, 2017 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, § 1 O(b )(iv), 950 C.M.R. 32.06(3); see also Dist. 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of the Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information. Exemption (I) Your February 23, 2017 response states that the District Attorney is withholding the responsive records 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 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)(f) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police

Lindsay Corcoran SPRl 7/270 Page 3 March 15, 2017 Commissioner of Boston, 378 Mass. 281,290 n.18 (1979). In your response you explained to Attorney Erkan that the case is still in warrant status, and remains open, therefore, the District Attorney is unable to provide any records. While the District Attorney claimed an exemption to the Public Records Law to withhold records, it merely claimed Exemption (f) without providing the level of specificity required to withhold records in their entirety. A records custodian has the burden of proving why the responsive records should be withheld. Therefore, I find that the District Attorney has not met its statutory and regulatory burden of specifically in claiming Exemption (f). Order Accordingly, the District Attorney is hereby ordered to provide Attorney Erkan with the requested records or a revised response to the request detailing why the records are exempt, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. Attorney Erkan may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Murat Erkan, Esq.