Bruce Gellerman v. Office of the District Attorney - Plymouth District (SPR 20171222)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 19, 2017 SPR17/1222 Gail M. McKenna, Esq. Office of the District Attorney-Plymouth District 166 Main Street Brockton, MA 023 01 Dear Attorney McKenna: I have received the petition of Bruce Gellerman, Senior Correspondent at WBUR 90.9 FM, appealing the non-response of the Office of the District Attorney-Plymouth District (DAO) to an August 28, 2017 request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Gellerman requested a copy oftwo categories of records relating to the services of DME/Latham in a 1986 criminal prosecution: 1) A copy of the RFP; and 2) Contract "used to secure the services ofDME/Latham." On September 61 h, only six days after his request, Mr. Gellerman appealed to the Supervisor of Records, stating, "note that my email of 8/28/17, revises my original request." Mr. Gellerman is advised that an RAO has ten (10) business days in which to respond to a public records request. Seven days after receipt of Mr. Gellerman's revised request, the DAO provided Mr. Gellerman and this office with a response. In your response, you explained that there are no RFP solicitations responsive to the request. Under the Public Records Law, the DAO is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d ). 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. See G. L. c. 66, § 10(a)(ii). On August 281 h, Mr. Gellerman revised his previous request, stating, "I am not asking for any records regarding the case before Judge McGuire. I seek no CORI information, investigative or prosecutorial records. I am only asking for a copy of the contract and RFP which should be a matter of public record. Clearly, Judge McGuire will not be making any use of the contract or RFP." 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. SPR17/1222 Page2 September 19, 2017 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, § 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). 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. DAO Response-Exemptions (a), CORI, (c) and (f) The DAO is withholding the contract between the DAO and DME Forensics/Darin Latham pursuant to the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a), Exemption (c) and Exemption (f) ofthe Public Records Law. Your response also states that a motion for a new trial regarding the 1986 first-degree murder conviction is currently being litigated in the Superior Court before Judge Maguire. It is the DAO's contention that the contract may be withheld due to the current litigation. You state, "[t]he request includes CORI, law enforcement investigative and prosecutorial records, work product, and matter that the Supreme Judicial Court rules of ethics require this office to forbear from communicating about while Judge Maguire is considering the case." The DAO cites the Massachusetts Rules of Professional Conduct as applicable to withhold the responsive contract. See Mass. R. Prof. C. 3.6; 3.8. The DAO's response did not meet its burden of proving with specificity that the responsive record, a contract for forensic services or fee agreement for services, is exempt from disclosure in its entirety. The DAO has cited Exemption (a), the second clause ofExemption (c) and Exemption (f) to withhold the contract in its entirety without explaining in detail how each of those exemptions apply. Instead, Mr. Gellerman was provided with a response that merely cited the exemptions without a detailed, explanation of each exemption and its application to withhold the contract. · I find that the DAO has not demonstrated that any of the cited exemptions apply to withhold the contract in its 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). Further, I find that it is unclear how disclosure of a contract for services, even in a

Gail M. McKenna, Esq. SPR1711222 Page 3 September 19, 2017 redacted manner will interfere with any action by the DAO against the court granting the defendant's motion for a new trial. Order Accordingly, the DAO is hereby ordered to provide Mr. Gellerman with a more substantial response to the request for responsive records, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Bruce Gellerman