Amy M. Belger v. Department of State Police (SPR 20171716)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 21, 201 7 SPR17/1716 Daniel Brunelli, Esq. Department of State Police Office of the Chief Legal Counsel 4 70 Worcester Road Framingham, MA O 1702 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, § lOA; 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." Previous appeal This request was the subject of a previous appeal. See SPRl 7/1612 Determination of the Supervisor of Records (November 22, 2017). I closed SPRl 7/1612 with the proviso that the Department provide Attorney Belger with a response to the request in a manner consistent with the order, the Public Records Law, and its Regulations. After the November 22, 2017 determination, the Department provided a response dated December 5, 2017, in which it continues to deny access to responsive records because Attorney Belger, on behalf of her client, has a unique right of access to the records. Unsatisfied with the Department's response, Attorney Belger petitioned this office and this appeal, SPRl 7/1716, was opened as a result. 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 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 7/1716 Page 2 December 21, 2017 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. 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 December 5th response In its December 5th response, the Department continues to reiterate that Attorney Belger has a unique right of access because she is the legal representative of an identified individual who is a criminal defendant and the subject of the records being sought. The unique right of access, according to the Department, includes "discovery provided under Rule 14 of the Massachusetts Rules of Criminal Procedure before [the identified individual's] October 1984 trial. As stated by the prosecution in its Response to Defendant's Motion for Discovery and later affirmed by the court in the criminal matter, [the identified individual] and [his/her] legal representative were provided all discovery (including records created by the Department) pursuant to the rules of discovery." Further, the Department indicates that "in 1987, when [the identified individual] moved for post-conviction discovery of 'all written reports', the Court affirmed [the identified individual] had been provided the written reports." Thus, the Department maintains that the "[the identified individual] and [his/her] legal representatives have received the records in question via criminal discovery, therefore 950 C.M.R. 32.08(1)(a) would apply." The Department also posits that Attorney Belger' s appeal should be denied pursuant to 950 C.M.R. 32.08(2)(b)(l) because "the criminal matter that these public records relate to, is currently an open criminal matter in Norfolk Superior Court. ..." Order In my November 22nd determination, the Departm~nt was directed to identify the means affording Attorney Belger a unique right of access or apply the Public Records Law to the request, identify the records it possesses, and explain with specificity the exemptions, if any, that apply under the Public Records Law to redact or withhold the responsive records. See SPRl 7 /1612 Determination of the Supervisor of Records (November 22, 2017). Accordingly, whereas the Department has not complied with the November 22, 2017 determination and has

Daniel Brunelli, Esq. SPR17/1716 Page 3 December 21, 2017 not satisfied its statutory and regulatory obligation under the Public Records Law, the Department is hereby ordered to provide Attorney Belger 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Amy Belger, Esq.