Ashley P. Allen v. Office of the District Attorney - Bristol District (SPR 20181155)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 16, 2018 ----------------------------------------------- SPRT8/IT55 Mary Lee, Esq. Assistant District Attorney Bristol County District Attorney's Office 888 Purchase Street, 5th Floor. New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of Ashley P. Allen, Esq. appealing the response of Bristol County 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, Attorney Patricia A. Dejuneas requested "copies of or access to" various records related to an identified client of hers. Previous appeals This request was the subject of previous appeals. See SPRl 7 /1062 Determination of the Supervisor of Records (August 7, 2017); SPRl 7/1435 Determination of the Supervisor of Records (October 19, 2017); SPR18/150 Determination of the Supervisor of Records (February 15, 2018); SPR18/534 Determination of the Supervisor of Records (May 4, 2018). I closed SPRl 8/534 by ordering the DAO to review the requested records, redact where necessary, and provide Attorney Allen with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. In a letter dated May 24, 2018 the DAO continues to deny access to responsive records. Unsatisfied with the DAO's response, Attorney Allen petitioned this office and this appeal, SPR18/1155, 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 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). 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

Mary Lee, Esq. SPR18/1155 Page2 August 16, 2018 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, § 1 O(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. Current appeal In my May 4th determination I found that the DAO had not demonstrated that Attorney Allen has a unique right to access these records that precludes her from pursuing an appeal with this office. See 950 C.M.R. 32.08(1)(a). I also found it was unclear how all of the withheld records fall under the Criminal Offender Record Information (CORI) Act; specifically, it was unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment." See G. L. c. 6, § 167. I further indicated the DAO had not met its burden to withhold the entirety of the records under Exemption (c). In its May 24th response the DAO denies access to responsive record and asserts "[t]he prosecutor's file constitutes Criminal Offender Record Information. G .L. c. 6, § 167." The DAO also argues "the prosecutor's case file should not be disseminated as a matter of public records law but the matter should be brought before the Fall River Superior Court pursuant to Mass. R. Crim. P. 30(c)(4)." In her appeal petition Attorney Allen indicates "(1) the Bristol DAO fails to overcome the presumption of disclosure; (2) the Bristol DAO cannot rely on the CORI statute for their total refusal to provide responsive public records; (3) the requested records do not fall within the CORI exemption and are not exempt from public disclosure; and (4) using a Rule 30 motion to obtain public records is unnecessary and does not guarantee disclosure of presumptively public information." I find that despite its May 24th response, and for the reasons articulated in my previous determinations, the DAO has not met its burden to withhold all responsive records. See G. L. c. 66, § lO(b)(iv) (a written response shall "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 exemption or exemptions upon which the withholding is based. ...) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). Conclusion Given that the DAO did not meet its burden to explain how an exemption applies to the records the DAO is ordered to review the requested records, redact where necessary, and provide Attorney Allen with responsive records, provided in a manner consistent with this order,

Mary Lee, Esq. SPR18/1155 Page 3 August 16, 2018 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. Failure to do so may result in referral of this matter to the Office of the Attorney General (AGO). See G. L. c. 66, § lOA(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ashley P. Allen, Esq.