James W. Rosseel v. Office of the District Attorney - Plymouth District (SPR 20180693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 25, 2018 SPR18/693 Gail M. McKenna, Esq. Office of the District Attorney - Plymouth District 32 Belmont Street P. 0. Box 1665 Brockton, MA 02303-1665 Dear Attorney McKenna: I have received the petition of James W. Rosseel, Esq. appealing the response of the Plymouth District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 13, 2018, Attorney Rosseel requested the following records: "1. Any and all police reports, supplemental reports, or memorandum/memoranda of interviews of potential suspects and/or witnesses obtained in the investigation, dated from September 4, 1989-May 13, 1992, related to the shooting homicide of [an identified individual] that occurred at or around" a specified address in Brockton on September 4, 1989; 2. "Any and all reports, supplemental reports, or memorandum/memoranda of interviews of [an identified individual], ... related to the shooting homicide of [an identified individual] and the prosecution of ... dated September 4, 1989 - May 13, 1992." The DAO provided a response on February 16, 2018, denying access to responsive records because Attorney Rosseel has a unique right of access. Unsatisfied with the DAO's response, Attorney Rosseel petitioned this office and this appeal, SPRl 8/693, was opened as a result. Purpose of request; identity of requestor Please note 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 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. SPR18/693 Page 2 May 25, 2018 circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Rosseel's purpose in making the request has no bearing on the public status of 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. 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 DAO's February 16th response In its February 16, 2018 response, the DAO indicates that because Attorney Rosseel has "requested records related to [his] representation of an individual convicted of first degree murder[,] [his] request is not cognizable under the [P]ublic [R]ecords [L]aw." The DAO asserts that Attorney Rosseel has '"a unique right of access to the record through statutory, regulatory, judicial or other applicable means' - i.e., an appropriate motion in court. See 950 CMR 32.08." Unique right of access; application of administrative appeals process The DAO's response indicates that because Attorney Rosseel is the legal representative of an individual convicted of first degree murder, he has "a unique right of access" and his "request is not cognizable under the Public Records Law." However, it is unclear how Attorney Rosseel has a "unique right of access to the record through statutory, regulatory, judicial or other applicable means" thereby barring the application of the administrative appeal process under the Public Records Law. Attorney Rosseel explained in his letter to the DAO on April 26, 2018, that" ... [t]here are no pending court matters where such motion could be filed" and asked the DAO to clarify its February 16th response. Accordingly, whereas Attorney Rosseel claims the judicial process does not afford him access to the requested records because "there are no pending court matters," the

Gail M. McKenna, Esq. SPR18/693 Page 3 May 25, 2018 DAO must explain whether there is a means affording Attorney Rosseel 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 DAO 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. Conclusion Accordingly, the DAO is ordered to provide Attorney Rosseel 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, ~=~ Supervisor of Records cc: James W. Rosseel, Esq.