Justin P. Gunter v. Cape & Islands District Attorney's Office (SPR 20171678)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 14, 2017 SPR17/1678 Tara Miltimore, Esq. Assistant District Attorney Office of the District Attorney - Cape & Islands District 3231 Main Street P.O. Box 455 Barnstable, MA 002630 Dear Attorney Miltimore: I have received the petition of Justin P. Gunter, Esq. of Parker, Hudson, Rainer & Dobbs, LLP appealing the response of the Office of the District Attorney - Cape & Islands District (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Gunter requested five categories of communications and related records between the DAO and various identified persons, law firms and a non-profit entity concerning Commonwealth v. Robison, John, (Nantucket District Court, and Criminal Docket No. 1475CR00002). Unsatisfied with the DAO's response, Attorney Gunter petitioned this office and this appeal was opened as a result. DAO's October 16, 2017 response In an October 16, 2017 response, the DAO informed Attorney Gunter that it has no records concerning his requests for five categories of records with the exception of record number four which requested, "communications and records of communications with two identified persons related to the case Commonwealth v. Robinson, John." The DAO also informed Attorney Gunter that record number four is being withheld pursuant to Exemption (a) and G. L. c. 41, § 97D. No duty to create records 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). 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

Tara Miltimore, Esq. SPR17/1678 Page 2 December 14, 2017 In his November 30th petition, Attorney Gunter states that the DAO's response indicating that it does not have any records responsive to request number two for communications between the DAO and law firm, Conley, Griggs and Partin LLP is questionable. Attorney Gunter states, "[i]n a recent deposition, Assistant District Attorney Tara Miltimore testified that she engaged in email communications with persons at Conley, Griggs and Partin, LLP." The DAO must provide a supplemental response regarding Attorney Gunter's statement and the request for the communications between the DAO and Conley, Griggs and Partin, LLP. Status of the requester-reason/or the request Attorney Gunter 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 Gunter's purpose in making the request has no bearing on the public status of any existing responsive records. It should also be noted, 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, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Gunter may wish to consider another means of seeking to obtain any existing responsive 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, § 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, § 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.

Tara Miltimore, Esq. SPRl 7/1678 Page 3 December 14, 2017 Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record" "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. G. L. c. 41, § 97D The DAO cites G. L. c. 41, § 97D, the Sexual Assault and Domestic Violence statute, as a basis for withholding the records responsive to request number in its entirety. The DAO's ili . October 16 response merely states that G. L. c. 41, § 97D applies to the requested records responsive to Attorney Gunter's request without any further explanation as to the exemption's applicability to the records. In Attorney Gunter's petition, he objects to the DAO's claim that G. L. c. 41, § 97D, as it operates through Exemption (a), allows the DAO to withhold the communications between the DAO and persons identified in the request. Attorney Gunter states that he believes that the cited statute only applies to communications between victims and police officers or police departments. I find that the DAO did not meet its burden of specificity in claiming Exemption (a) and G. L. c. 41, § 97D to withhold records. The DAO did not provide the reasons the claimed statute applies to withhold the records in their entirety. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281,290 (1979) (the statutory exemptions are narrowly construed and are not blanket in

Tara Miltimore, Esq. SPRl 7/1678 Page 4 December 14, 2017 nature). The DAO also has a duty to segregate those portions of a record that are specifically exempt from disclosure, and provide the balance of the record. G. L. c. 66, § lO(a). I understand that a staff member in the Public Records Division contacted you regarding this appeal. Conclusion Accordingly, the DAO is hereby ordered to provide Attorney Gunter with a response to the request, provided 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 Gunter may appeal the supplemental response within ninety calendar days. 950 C.M.R. 32.08(1 ). Sincerely, ~a~ Supervisor of Records cc: Justin P. Gunter, Esq.