Christopher King, J.D. v. Office of the District Attorney - Plymouth District (SPR 20171338)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 29, 2017 SPR17/1338 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 appealing the August 28th 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, Mr. King requested a copy ofthe RFP and the contract used to secure the services ofDME/Latham. The responsive contract was the subject of three prior appeals. See SPR17/671; SPR17/1063 and SPR17/1256 (May 26, 2017; August 18,2017 and September 19, 2017). In its August 28th response, the DAO informed Mr. King that the DAO has no record responsive to his request for an RFP. 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 of records. See G. L. c. 66, § 1 0( a )(ii). The DAO is withholding the contract for services between the DAO and DME/Latham pursuant to Exemptions (a), (c) and (f) of the Public Records Law until the conclusion of the case. Mr. King appealed your May 15th and August 28th responses. 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. 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. SPR17/1338 Page 2 September 29, 2017 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). · DAO Response-COR/, Exemptions (a), (c), and (f) The DAO is withholding the contract for services between the DAO and DME Forensics/Darin Latham pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), Exemption (c) and Exemption (f) of the 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 Superior Court. 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 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. Therefore, 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). Furthermore, I find that it is unclear how disclosure of a contract for services, even in a redacted manner will interfere with any action by the DAO against the court granting the defendant's motion for a new trial. Order I find that the DAO has not met its burden to withhold the requested contract. Accordingly, the DAO is hereby ordered to provide Mr. King with the responsive record 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 that may accompany the record 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, ~~ Supervisor of Records • cc: Christopher King, J.D.