Abdullah R. Muhammad (Frank Clifford) v. Office of the District Attorney - Hampden District (SPR 20171427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 20,2017 SPRl711427 Joseph Pessolano, Esq. Office of the District Attorney - Hampden County 50 State Street Springfield, MA 0 1 102 Dear Attorney Pessolano: I have received the petition of Abdullah Muhammad (Frank Clifford) appealing the response of the Hampden County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Muhammad requested "a copy of [an identified individual's] case files" and "any and all information within [the DAO's] possession" regarding an identified individual and series of events. Attorney Joseph Pessolano, records access officer, responded to his request declining to accommodate his request for records. 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, 5 1O A(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 dr received by any officer or employee of any town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist, Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 51 1 (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. The Records Access Officer (RAO) must provide records within the custodian's possession, custody or control of the agency or municipality that the RAO serves, provided that the request reasonably describes the desired information. G. L. c. 66, 5 10(a). RAOs are expected to use their superior knowledge of the records in their custody to assist the requester in obtaining One Ashburton Place, Room 1719, Boston, Massachusetts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre(6Jsec.state.ma.u~

Joseph Pessolano Page 2 October 20,2017 the desired information. 950 C.M.R. 32.04(5). Further, RAOs are required to assist persons seeking public records to identify the records sought and must, when appropriate, suggest a reasonable modification of the scope of the request or offer to assist the requester to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably. G. L. c. 66, 5 10(b); 950 C.M.R. 32.04(5)(b); 950 C.M.R. 32.06(2)(g). Additionally, the RAO must identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the RAO serves and identify the agency or municipality that may be in possession, custody or control of the public record sought, if known. G. L. c. 66, 5 10(b); 950 C.M.R. 32.06(3). Purpose of request; identity of requester Please note that the reason for which a requester seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Mr. Muhammad's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(l)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Muhammad may wish to consider another means of seeking to obtain any existing responsive records. The DAOJsS eptember ~~"~esponse The DAO states it is denying Mr. Muhammad's request, because the request "does not" contain a '"reasonable description' of the documents sought," and "would no doubt include, and perhaps go well beyond, the exemptions mandated by law." The DOA lists the following as "examples" of exemptions: "materials pertaining to on-going investigations or prosecutions (G.L. c. 4, 5 7(26)(f))" (listed twice in the DAO's response); "grand jury minutes and related materials (G.L. c. 4, 5 7(26)(a) & (f); Mass. R. Crim. P. 5(d));" "medical, health, and hospital records (G.L. c. 4, 5 7(26)(c));" "autopsy reports (G.L. c. 4, 5 7(26)(a) & (c); (G.L. c. 38, 5 2);" and "Criminal Offender Record Information ("CORI") (G.L. c. 4, 9 7(26)(a); G.L. c. 6, §§167A, 172). An RAO has a duty to comply with requests for records, which extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of

Joseph Pessolano Page 3 October 20,2017 the request. See G. L. c. 66, 5 lO(a)(ii). An RAO must explain whether it possesses any responsive records and use its knowledge of the records to facilitate providing any additional responsive records. G. L. c. 66, 5 1O (b)(vii). Any denial issued by an RAO must be done in a manner consistent with G. L. c. 66, 5 lO(a-b) and 950 C.M.R. 32.06 (c)(3). All denials must include specific identification of the records sought, identification of which records the custodian possesses, identification and explanation of any claimed exemptions or privileges, identification of any records not within the custodian's possession and identification of the custodian who may be in possession of those records. 950 C.M.R. 32.06 (c)(3). The DAO is advised that if they are unable to identify the records sought in Mr. Muhammad's request, they are under a duty to assist him in identifying the records and respond in compliance with the Public Records Law. 950 C.M.R. 32.04(5). Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, 5 lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. Additionally, under the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. See G. L. c. 66, 5 1O (a). The DAO's response does not contain the specificity required in a denial of access to public records. Instead, the DAO's response merely lists Exemption (a) and the CORI Act, Exemption (f) and Exemption (c) without explaining what responsive records it possesses or any further explanation as to the exemptions' applicability to the requested records. The DAO is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Additionally, it is unclear how the responsive records, in their entirety, are exempt from disclosure. 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, 5 10(a). As a result, I find that the DAO has not met its burden in responding to this records request. The DAO is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. The DAO must confirm whether it has "a copy of [an identified individual's] case file" "any and all information within [the DOA's] possession" regarding an identified individual and series of events. If so, the DAO must identify the responsive records. If the DAO intends to withhold records by claiming an exemption under the Public Records Law, it must explain with specificity the applicability of any exemptions claimed. Order I understand a staff member of the Public Records Division attempted to contact the

Joseph Pessolano Page 4 October 20,2017 DAO about this matter, but was unsuccessful. Accordingly, the DAO is ordered to provide a response to Mr. Muhammad in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec,state.ma.us. Mr. Muhammad may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Abdullah Muhammad (Frank Clifford)