Christopher King, J.D. v. Office of the District Attorney - Plymouth District (SPR 20171256)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 18,2017 SPR17/1256 Gail M. McKenna, Esq. Office of the District Attorney-Plymouth District 166 Main Street Brockton, MA 02301 Dear Attorney McKenna: I have received the petition of Christopher King, Esq. appealing the response of the Office of the District Attorney-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 copies of: 1. A full accounting of the costs to date (May 10, 2017, date of the original request); and 2. A contract between the DAO and DME Forensics/Latham. Prior appeals The responsive records were the subject of two prior appeals. See SPR17/671; SPR17/1063 Determinations of the Supervisor of Records (May 26 and August 18, 2017). On June 29th, the DAO provided an invoice of costs in response to Attorney King's Request #1. In my August 18th determination, I closed the appeal with the DAO's indication it would provide another response regarding Attorney King's Request #2. The DAO provided a response regarding my August 18th determination on August 28th. Your August 28th letter states that the DAO is withholding the contract in its entirety pursuant to Exemption (a), the Criminal Offender Record Information Act (CORI), Exemption (c) and Exemption (f) of the Public Records Law. Attorney King appealed your August 28th denial. 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). 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

Christopher King SPR1711256 Page 2 September 18,2017 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. Criminal Offender Record Information; Exemptions (a), (c) and (f) In his appeal petition, Attorney King indicates that the DAO has refused to provide a copy of the contract without any further information concerning its denial and exemption claims. Attorney King states, "this is a bench trial and the release of a contract in no way imperils the integrity of this proceeding." The DAO has denied access to a copy of the contract, claiming that the DAO is in the midst of litigating a post-conviction "motion for a new trial" filed by the defendant in a 1986 first-degree murder conviction. Merely citing the exemptions, the DAO has claimed that it is withholding the contract pursuant to the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a), Exemption (c) and Exemption (f). Further, the DAO also states that the request includes CORI, law enforcement investigative and prosecutorial records, work product, and matters involving Mass. R. Prof. C. 3.6; 3.8. Additionally, you state that the office will reconsider Attorney King's request at the conclusion of the matter. It is unclear how disclosure of this contract will adversely affect the Commonwealth's defense of the motion, or how the contract may be withheld as CORI, or pursuant to Exemptions 1 (c) and (f). In my May 26h determination, I ordered the DAO to specifically explain how the exemptions claimed allow the DAO to withhold the contract in its entirety. As such, I continue to find that the DAO did not meet its burden of proving with specificity that it is justified in withholding the contract, even in a redacted format. 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). Order Accordingly, the DAO is hereby ordered to provide Attorney King with a copy of the contract, redacting as allowed under the Public Records Law, and in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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.

Christopher King SPR17/1256 Page 3 September 18,2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: ChristopherKing, Esq.