Christopher King, J.D. v. Office of the District Attorney - Plymouth District (SPR 20170671)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 26, 2017 SPR17/671 Gail M. McKenna, Esq. Records Access Officer Office of the District Attorney for the Plymouth District 166 Main Street Brockton, MA 02301 Dear Attorney McKenna: I have received the petition of Attorney Christopher King appealing the response of the Office of the District Attorney for the Plymouth District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney King requested a contract of an identified person who may have been retained as an expert witness for the DAO, along with a full accounting of costs up to the date of the request. In a May 15, 2017 response, the DAO denied the request pursuant to the attorney-client privilege, the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), and Exemptions (b), (c), (d) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b), (c), (d), (f). Your response also claims that the DAO is not required to confirm the existence of any witnesses or witness statements responsive to your request. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976); Att'y General's Memorandum on the 1986 Amendments to the Freedom of Info. Act 26 (Dec. 1987) ( explanation of the "Glomarization" doctrine wherein it is appropriate to neither confirm nor deny the existence of records containing information falling under an exemption to mandatory disclosure when any other response to the request would reveal the exempt information). The DAO further advised Attorney King that access to evidentiary records, such as expert witness information is governed by the rules of criminal procedure associated with such court proceedings; therefore, he should seek access to information and records through the discovery process. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976); see also John Doe Agency v. John Doe Corp., 463 U.S. 146, 153 (1989) (FOIA was not intended to supplement or displace rules of discovery). 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 7/671 Page 2 May 26, 2017 Status of the requester and reason for the request The Public Records Law does not distinguish between individuals seeking public records. Attorney King and his client should be advised that status as an attorney representing a criminal defendant in a matter before the courts of the Commonwealth of Massachusetts offers them 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. Police Chief of Lexington, 371 Mass. 59, 64. Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Attorney King's status shall play no role in a determination as to whether the records may be disclosed to the public. 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). 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, § lO(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. Attorney-client privilege; Criminal Offender Record Information; Exemptions (a)-(!) In his appeal petition Attorney King indicates he is "seeking only the portions of the fee agreement that indicate the compensation subsidized by the taxpayers of the Commonwealth for said [e]xpert." The DAO's May 15th response did not specifically explain how the attorney-client privilege, the CORI Act as it operates through Exemption (a), and/or Exemptions (b), (c), (d) and (t) allow any responsive records to be withheld in their entirety. It is also unclear whether responsive records exist. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii). As such, I find that the DAO did not meet its burden of proving with specificity that any responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a).

Gail M. McKenna, Esq. SPRl 7/671 Page 3 May 26, 2017 Order Accordingly, the DAO is hereby ordered to provide Attorney King with a more detailed response provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Rebecca S. Murray Supervisor of Records cc: Christopher King, Esq.