Cody Shepard v. Plymouth County District Attorney's Office (SPR 20181486)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

October 11, 2018 SPR18/1486

Jessica L. Kenny, Esq.

Assistant District Attorney

Plymouth County District Attorney’s Office 166 Main Street

Brockton, MA 02301

Dear Attorney Kenny:

I have received the petition of Cody Shepard of The Enterprise of Brockton appealing the response of the Plymouth County District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Shepard requested the following records from the East Bridgewater Police Department:

e Any incident reports and police log entries regarding a fatal crash on Route 106 (West Street) in East Bridgewater on May 19, 2018

_ @ Any 911 audio recordings received by the Police Department on May 19, 2018 related to the crash

e Any surveillance video recordings in the Police Department’s possession related . to the May 19, 2018 crash.

The DAO responded on September 7, 2018 by denying access to responsive records under Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f); G. L. c. 6, §§ 167-178B; G. L. c. 119, § 60A.

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, § 10A(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 ofthe 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

Jessica L. Kenny, Esq. SPR18/1486 Page 2 October 11, 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, § 10(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.

Appeal

In its September 7™ response the DAO explains that this request “was forwarded to our office since the District Attorney’s Office has jurisdiction over the investigation.” The DAO also asserts “Criminal Offender Record Information (CORD, is exempt from disclosure under the Public Records Law. See G. L. c. 6, § 167-178B. Under G. L. c. 4, G. L. c. 4, § 726)(f), materials pertaining to an ongoing investigation are privileged and exempt from public record requests. Records relating to a juvenile delinquency case are also exempt from the Public Records Law under G. L. c. 119, § 60A. As a result, we cannot provide any records subject to your request.”

In his appeal petition Mr. Shepard indicates “the district attorney’s office is prosecuting an individual in this case who has been indicted by a grand jury as a youthful offender. Massachusetts General Law Ch. 119, Section 60A, the same law used by the office in its denial, specifically states that all youthful offender case records are subject to ‘public inspection in the same manner and to the same extent as adult criminal court records.’” Mr. Shepard also notes “during the individual’s arraignment on the youthful offender indictment in Brockton Juvenile Court on Sept. 24, a prosecutor from the district attorney’s office used a police report to outline the allegations against the defendant. We request a copy of the report that was used in a public court session, but was not filed with the clerk magistrate’s office.”

Subsequent to the opening of this appeal, the DAO provided this office a supplemental response on October 11, 2018 and provided a copy to Mr. Shepard. In this response the DAO asserts “[w]hile [Mr. Shepard] is correct, that a prosecution is now proceeding in Juvenile Court where an individual is charged as a Youthful Offender, at the time of [Mr. Shepard’s] request, that was not the case and thus was the basis for our denial of the request based on its status as a juvenile delinquency matter.” However, you also note “[n]otwithstanding that change in circumstance, the Commonwealth still asserts that the request for police reports, 911 recordings and surveillance video in a pending investigation and prosecution are exempt from public records law for the reasons stated in my letter dated September 7, 2018.”

The DAO provides additional information regarding its Exemption (f) claim and also references Mass. R. Prof. Cond. 3.6(a) and Mass. R. Prof. Cond. 3.8(H(1)-(2). You also indicate that The Enterprise “may obtain a transcript of the proceedings from the criminal clerk’s office.”

In light of the DAO’s October 11" response that addresses certain issues raised in Mr. Shepard’s appeal, particularly with respect to G. L. c. 119, § 60A, I will now consider this appeal

Jessica L. Kenny, Esq. SPR18/1486 Page 3 October 11, 2018

closed. Mr. Shepard may appeal the substantive nature of the DAO’s October 1 i" response within 90 days: See 950 C.M.R. 32.08(1).

Obese

Rebecca S. llecea_| Supervisor of Records

ce: Cody Shepard