Bruce Gellerman v. Office of the District Attorney - Plymouth District (SPR 20171459)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 24, 2017 SPR17/1459

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 Bruce Gellerman, Senior Correspondent at WBUR 90.9 FM, appealing the response of the Office of the District Attorney Plymouth District (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Gellerman requested a copy of the contract used to secure the services of DME/Latham. The contract was the subject of two prior appeals. See SPR1190; SPR17/1212 Determinations of the Supervisor of Records (August 31, 2017; September 19, 2017). As a result of my September 19" determination, you provided Mr. Gellerman with another response on September 28th. Mr. Gellerman petitioned this office, and the current appeal was opened.

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).

DAO Response — CORI, Exemptions (a), (c), and (f)

With its June 29", July 18", September 7” and September 28" responses, the DAO continues to withhold the contract for services between the DAO and DME Forensics/Darin

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. SPR17/1459 Page 2 October 24, 2017

Latham pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a), as well as Exemption (c) and Exemption (f) of the Public Records Law.

Your responses also state that a motion for a new trial regarding an identified defendant’s 1986 first-degree murder conviction is currently before the Superior Court. It is the DAO’s contention that the contract may be withheld due to the court action because the contract relates to the subject of the investigation and evidentiary hearing aimed at resolving the disputed issue. The DAO has stated previously that the requested contract is CORI, a law enforcement investigative and prosecutorial record, and work product. Furthermore, the DAO states that the Supreme Judicial Court rules of ethics require that the DAO forbear from communicating about the matter while Judge Maguire is considering the case. The DAO cites the Massachusetts Rules of Professional Conduct regarding “trial publicity” and “extrajudicial comments” as applicable to withhold the responsive contract. See Mass. R. Prof. C. 3.6; 3.8.

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).

Conclusion

Accordingly, the DAO is ordered to provide records in a manner consistent with this order, the Public Records Law and its Regulations within ten 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.

In camera inspection

In the alternative, in order to facilitate a determination as to the applicability of exemption claims made by the DAO, the DAO may provide this office an unredacted copy of the responsive records for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record.

The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Gail M. McKenna, Esq. SPR17/1459 Page 3 October 24, 2017

Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

The DAO may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record.

Sincerely,

Rebecca S. Murray C

Supervisor of Records

cc: Bruce Gellerman