Amy M. Belger v. Massachusetts State Police (SPR 20171612)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 22, 2017 SPR17/1612 Daniel Brunelli, Esq. Department of State Police Office of the Chief Legal Counsel 4 70 Worcester Road Framingham, MA O1 702 Dear Attorney Brunelli: I have received the petition of Amy M. Belger, Esq. appealing the response of the Department of State Police Office of the Chief Legal Counsel (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on September 8, 2017, Attorney Belger requested "[a]ll documents in the possession of the MA State Police relative to the investigation into the homicides of [two identified individuals] on July 24, 1982 at 762 West Street in Stoughton." The Department provided a response dated September 12, 2017, in which it denied Attorney Belger access to the records because she has a "unique right of access through the judicial process." Unsatisfied with the Department's response, Attorney Belger petitioned this office and this appeal, SPRl 7/1612, was opened as a result. Status of the requester and reason for the request Attorney Belger should be advised that the reason for which a requestor 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 requestors. 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, Attorney Belger's purpose in making the request has no bearing on the public status of any existing responsive records. It should also 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(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, 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

Daniel Brunelli, Esq. SPRl 7/1612 Page 2 November 22, 2017 has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). 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, § IOA(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, § IO(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's September Jilt response In its September 12th response, the Department indicated that it denied Attorney Belger access to the records because she has a unique right of access to the records under 950 C.M.R. 32.08(1)(a). The Department indicated that "[b]ased on the information known to the department, you are post-conviction counsel for the defendant associated with these homicides. Given that information, you have a unique result of access through the judicial process to these records through the post-conviction appellate process." Unique right of access; application of administrative appeals process The Department's September 12, 2017 response indicated that as post-conviction counsel, Attorney Belger holds a unique right of access to the records through the "post conviction appellate process." However, it is unclear how the post-conviction appellate process provides a unique right of access thereby barring the application of the administrative appeal process as required under the Public Records Law. Attorney Belger explained that the records are not available through the above mentioned process. She specifically states that she has "no 'unique right or result of access' to the records sought, having already unsuccessfully sought them pursuant to Mass. R. Crim. Proc. 30(c)(4)." Accordingly, whereas Attorney Belger has been denied access to the requested records

Daniel Brunelli, Esq. SPRl 7/1612 Page 3 November 22, 2017 through the judicial process, the Department must explain whether there is a means affording Attorney Belger a "unique right of access" to the requested records and if so, identify the means and explain its applicability or apply the Public Records Law to the request, identify the records the Department has in its possession and explain with specificity the exemptions, if any, that apply under the Public Records Law to redact or withhold the responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal and you indicated the Department will prove a supplemental response. Conclusion Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provides said response 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. Attorney Belger may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Supervisor of Records cc: Amy M. Belger, Esq.