Frank L. Stanley v. Office of the District Attorney - Northwestern District (SPR 20181137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13,2018 SPR18/1137 Cynthia M. Von Flatern, Esq. Assistant District Attorney Office of the District Attorney -Northwestern District One Gleason Plaza Northampton, MA 0 1080 Dear Attorney Von Flatern: I have received the petition of Frank Stanley appealing the response of the Office of the District Attorney - Northwestern District (DAO) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Mr. Stanley requested various records regarding an identified court case, specifically: 1. Departmental emails; 2. OS Triage, Encase, FTK, Autopsy 3 and any other forensic records in connection with thumb drive, Dell Inspiron Laptop, Dell Desktop, ASUS Netbook; 3. Property transfer receipts from Town of Hadley Police Department to the Department of State Police (State Police); transfer receipts from Sergeant Thomas Balcey to Trooper Gavioli; any other transfer receipts of thumb drive and computers; 4. Search warrants procured by the State Police and/or District Attorney's Office for thumb drive and computers; 5. Color copies of digital photos on thumb drive (MSP Item 2-1 USB Flash Drive 8GB Sandislc Cruzer), of the following: (a) C/Iraq/61886 1551756429469-1 101883652- 1 607606-61845.n.jpeg; (b) ~ / ~ r a ~ / ~ r a n&k Fa,m~ilay.rjp~g (c) C/Iraq/John, Wendy & Family & Frank.jpg In its initial June 29,2018 response, the DAO states, "[tlhe single public record that exists in our records is a receipt for evidence dated 07/19/2012." This record was provided to Mr. Stanley; however, the DAO withheld other responsive records, including photos under the second clause of Exemption (c) and G. L. c. 214, 5 lB, and the forensic records, search warrants and police reports pursuant to Exemption (0 a nd G. L. c. 41, 5 97D as it operates through Exemption (a) of the Public Records Law. As a result of the denial, Mr. Stanley petitioned this office and this appeal was opened. 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

Cynthia M. Von Flatern, Esq. Page 2 August 13,2018 Tlze 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, 5 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, 8 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, 5 lO(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific see exemption or exemptions upon which the withholding is based.. ."); 950 C.M.R. 32.06(3); also Dist. Attorney for the Norfolk Dist. v. Flatlev, 419 Mass. 507, 51 1 (1995) (custodian has the burden of establishing the applicability of an exemption). Current appeal In its June 29thr esponse, the DAO claims Exemption (c) to withhold photos, and indicates "[rlelease of the photographs of the family of the children that were victimized would constitute an unwarranted invasion of this family's privacy." The DAO also indicates that G. L. c. 214, § 1B applies to withhold the photos. The DAO withheld the forensic evidence as investigatory under Exemption (f), and the police reports and search warrant materials under G. L. c. 41, 5 97D as it operates through Exemption (a). After this appeal was opened, the DAO provided an August 8, 201 8 supplemental response regarding Mr. Stanley's records request. In this response the DAO provides additional information regarding its claim to withhold emails as work product and also under the attorney- client privilege. $ee DaRosa v. New Bedford, 471 Mass. 446 (2015); see also Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444 (2007). You also note that the DAO has contacted the Belchertown District Court Clerk's Office (District Court) regarding Mr. Stanley's - request for the search warrants. You assert that the DAO will provide the responsive search warrant applications, search warrants, and returns as soon as the records are received from the District Court. Conclusion Accordingly, in light of the DAO's August 8thr esponse in which it indicates it is providing additional responsive records, I will now consider this administrative appeal closed. Mr. Stanley may appeal the substantive nature of the DAO's response within ninety calendar days. 950 C.M.R. 32.08(1).

Cynthia M. Von Flatern, Esq. Page 3 August 13,2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Stanley