Ira Gant v. Office of the District Attorney - Norfolk District (SPR 20170769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 19, 2017 SPR17/769 Laura A. McLaughlin, Esq. Assistant District Attorney Office of the District Attorney Norfolk District 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition oflra Gant, Esq. of the Committee for Public Counsel Services' Innocence Program appealing the response of the Office of the District Attorney for the Norfolk District (DAO) to a request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1 ). Attorney Gant requested a copy of records related to a criminal prosecution, Docket No. NOCR1998-04977, specifically: All documents created or received by the DAO related to the chain-of-custody evidence of biological items or physical evidence that was either collected as evidence or stored as evidence, including evidence receipts, evidence transfer documents, evidence submission documents and chain-of-custody records. In a May 30th response, the DAO has denied the request in its entirety pursuant to the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a), as well as Exemption (c) and Exemption (f) ofthe Public Records Law. Attorney Gant appealed. Petitions to the Supervisor of Records Attorney Gant is reminded that under the ne~ requirements in the Public Records Law, when petitioning the Supervisor of Records (Supervisor) for an appeal, the requester shall provide a copy of such petition to the Records Access Officer. 950 C.M.R. 32.08(1)(h). A copy of the appeal file was provided to the DAO by an attorney in the Public Records Division to assist the DAO in providing a more, detailed response to the request and this appeal. 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

Ira Gant, Esq. SPR17/769 Page2 June 19,2017 Status of the requester and reason for the request The Public Records Law does not distinguish between individuals seeking public records. Attorney Gant should be advised that his status as an attorney for an individual who may be seeking post-conviction relief offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § 10(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. Attorney Gant' s status shall play no role in a determination concerning whether the requested 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, § 10A(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, § 10(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemptions (a), (c) and (f) -No specificity The DAO's May 30th response merely claims that the records cannot be provided pursuant to Exemption (a), the CORI Act, and Exemption (c) due to medical information and privacy concerns. You also note that chain-of-custody and other records concerning medical and forensic evidence that may have been introduced at trial would fall under not only the medical exemption, but also the investigatory exemption, Exemption (f). Finally, you write, "it is understood that all available discovery was provided pre-trial. As you know, Mass. R. Crim. P. 30 and G. L. c. 278A provide mechanisms under which a previously convicted defendant may seek discovery. You may wish to pursue those opportunities."

Ira Gant, Esq. SPR17/769 Page 3 June 19, 2017 The DAO's May letter does not provide any specificity to explain how chain-of-custody documents may be withheld in their entirety pursuant to Exemptions (a), (c) and (f) of the Public Records Law, and why the records cannot be provided in a redacted format. As such, I find that the DAO did not meet its burden of proving, with specificity, how the responsive records are exempt from disclosure in their entirety. 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, § 10(a). In a telephone conversation, a Public Records Division attorney informed you that the DAO had not met its burden in providing a detailed response or justifying the exemptions claimed by the DAO to withhold the chain-of-custody records in their entirety. The DAO must provide the requested records or a further response that specifically explains the exemption claims and why the records cannot be provided to Attorney Gant in a redacted format. It is my understanding that you have agreed to provide a more specific response to the request. · Conclusion Accordingly, whereas the DAO has indicated that it will provide Attorney Gant with a further response to his request and to the application of the exemptions to the records, I will consider the appeal closed with the proviso that the response is 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 Gant may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Murr~ Rebecca S. Supervisor ofRecords cc: Ira Gant, Esq.