Jesse Lee Bigham v. Office of the District Attorney - Plymouth District (SPR 20170326)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2017 SPR17/326 Gail M. McKenna, Esq. Records Access Officer Office of the Plymouth County District Attorney 32 Belmont Street Brockton, MA 02301 Dear Attorney McKenna: I have received the petition of Jesse Lee Bigham appealing the response of the Office of the Plymouth County District Attorney (District Attorney) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bigham requested a copy of his criminal record files, and restraining orders, abuse prevention orders and harassment prevention orders. In a February 15, 2017 response, the District Attorney informed Mr. Bigham that the restraining orders, abuse prevention orders and harassment prevention orders are not in the custody of the District Attorney, but instead are records of the court system. The District Attorney also informed Mr. Bigham that his criminal record files are being withheld pursuant to the Criminal Offender Records Information Act (C.O.R.I.) as it operates through Exemption (a) of the Public Records Law. See G. L. c. 6, § 167, et seq; G. L. c. 4, § 7(26)(a). Mr. Bigham appealed. In his March 5th petition to the Supervisor of Records he states that the records concern both himself and his wife, and are necessary to properly prepare and present both his defense in criminal, civil and probate court matters. 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 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

Gail M. McKenna, Esq. SPRl 7/326 Page 2 March 22, 201 7 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, § 1O (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). Status of the Requester and Appeals to the Supervisor While Mr. Bigham may be seeking his own records, including his own CORI, the Public Records Law does not distinguish between individuals seeking public records. Mr. Bigham should be advised that his status as the subject of the records offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § lO(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Mr. Bigham informed this office and the District Attorney that he is represented by Legal Counsel and provided his attorney's name and address. Mr. Bigham should be advised that the appeal process under the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(l)(a). The records are directly related to Mr. Bigham' s civil and criminal judicial proceedings and he has a unique right of access through the judicial process. Accordingly, whereas Mr. Bigham has a unique right of access through the judicial process, I decline to continue any further review of his petition. Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Spillane, Esq., Jesse Lee Bigham