Julian Castle Logan v. Office of the District Attorney - Middlesex District (SPR 20170345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2017 SPR17/345 Asher Kim, Esq. Assistant District Attorney Office of the District Attorney Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Kim: I have received the petition of Julian Castle Logan appealing the response of the Middlesex District Attorney's Office (DAO) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Logan requested grand jury transcripts and supplemental reports for a specified case file, as well as "an evidence log book concerning all inculpatory and exculpatory data found and saved on February 24-25, 2004" and "a complete record of all evidence collected" by the Everett Police Department for the same matter. In a response dated January 26, 2017 you denied Mr. Logan's request for the grand jury transcripts and notified him that the DAO had no records responsive to the other portions of his request. Mr. Logan petitioned this office in a letter dated March 11, 2017 and this appeal (SPR 17 /345) 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, § IOA(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). 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, § IO(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 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

Asher Kim, Esq. SPRl 7/345 Page2 March 22, 2017 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. Purpose of request In his petition, it appears that Mr. Logan is the subject of the requested 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, Mr. Logan'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, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); 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"). In addition, the Supervisor of Records (Supervisor) may deny an appeal if the public records in question are the subject of disputes in active litigation, administrative hearings or mediation. 950 C.M.R. 32.08(2)(b). As such, Mr. Logan may wish to consider another means of seeking to obtain any existing responsive records. Grand Jury minutes In the January 26th response, you explained that the DAO is withholding copies of the grand jury minutes as they "inherently relate to an investigation," as was previously explained in a letter dated April 19, 2016. 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) Grand jury minutes and materials inherently relate to an investigation. Even where an investigation is closed, the minutes necessarily contain witness statements in the form of testimony. The grand jury process is dependent upon witnesses coming forward and testifying freely. The requirement of secrecy in grand jury proceedings is deeply rooted in Massachusetts

Asher Kim, Esq. SPRl 7/345 Page 3 March 22, 2017 common law. WBZ-TV4 v. District Attorney for the Suffolk Dist, 408 Mass. 595,599 (1990). The rationale for such secrecy is to encourage the full and free disclosure of information concerning the commission of a crime, and to allow the utmost freedom of deliberation to the grand jury. Douglas Oil Company v. Petrol Stops Northwest, 441 U.S. 211,219 n.10 (1979). Disclosure of grand jury minutes and materials would defeat the purposes of grand jury secrecy. Accordingly, the DAO may withhold grand jury minutes and materials pursuant to Exemption (f). Conclusion I find the DAO properly withheld responsive grand jury minutes. Accordingly, this administrative appeal is closed. If Mr. Logan is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Supervisor of Records cc: Julian Castle Logan