Kevin Rothstein v. Berkshire District Attorney's Office (SPR 20181984)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords December 17 , 2018 SPRlS/1984 Joseph A. Pieropan, Esq. Assistant District Attorney - Records Access Officer Berkshire District Attorney's Office 7 North Street -P.O. Box 1969 Pittsfield, MA 01202-1969 Dear Attorney Pieropan: I have received your petition on behalf of the Berkshire District Attorney's Office (DAO) seeking an extension oftime to furnish copies of the requested public record, or any portion thereof. G. L. c. 66, § lO(c); see also 950 C.M.R. 32.06(4). On November 29, 2018 Kevin Rothstein of WCVB-TV Channel 5 requested" ... an electronic copy of portions of your office's DAMION or similar database containing criminal case information, where such records were created since Jan. 1, 2013 through the time thfa public records request is fulfilled." Mr. Rothstein identified several fields that he seeks from the database and indicated "[a]s you may know, the Court ruled earlier this month in Maura Healey vs. Timothy J. Cruz & Others, Suffolk Superior Court docket number 16-03618, that all of the above fields are public records." Petitions for an extension of time Under the Public Records Law, upon a showing of good cause, the Supervisor of Records (Supervisor) may grant a single extension to an agency not to exceed 20 business days and a single extension to a municipality not to exceed 30 business days. In determining whether there has been a showing of good cause, the Supervisor shall consider, but shall not be limited to considering: (i) the need to search for, collect, segregate or examine records; (ii) the scope of redaction required to prevent unlawful disclosure; (iii) the capacity or the normal business hours of operation of the agency or municipality to produce the request without the extension; (iv) efforts undertaken by the agency or municipality in fulfilling the current request and previous requests; 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

Joseph A. Pieropan, Esq. SPR18/1984 Page2 December 17, 2018 (v) whether the request, either individually or as part of a series of requests from the same requestor, is frivolous or intended to harass or intimidate the agency or municipality; and (vi) the public interest served by expeditious disclosure. G. L. c. 66, § lO(c). If the Supervisor determines that the request is part of a series of contemporaneous requests that are frivolous or designed to intimidate or harass, and the requests are not intended for the broad dissemination of information to the public about actual or alleged government activity, the Supervisor may grant a longer extension or relieve the agency or municipality of its obligation to provide copies of the records sought. Id. The filing of a petition does not affect the requirement that a Records Access Officer (RAO) shall provide an initial response to a requestor within ten business days after receipt of a request for public records. 950 C.M.R. 36.06(4)(b). Current petition In a petition received by this office on December 10, 2018, the DAO indicates "[o]n November 29, 2018, this Office received an email from Kevin Rothstein, Investigative Reporter for WCVB-TV, requesting an electronic copy of26 separate fields of this Office's DAMION database created between January 1, 2013 and the present date." You also explain that "[w]hen the Boston Globe made a similar request in 2015, the Office needed several months to search its database and redact confidential information. For these reasons, I am submitting the instant petition, pursuant to 950 CMR 32.06(4)(a) and (d), seeking an extension of time of20 business days to comply with Mr. Rothstein's request." Subsequent to the filing of this petition, this office learned that in a December 5, 2018 email Mr. Rothstein indicated "I believe with our mutual agreement you take more than the 10 business days, to which I agree so long as progress is being made in good faith." I find that in light of Mr. Rothstein's agreement for additional time to comply with the request, I find it is unnecessary to opine on the DAO's petition for an extension of time to produce records. See G. L. c. 66 § lO(b)(vi) (" ...t he requestor may voluntarily agree to a response date beyond the timeframes set forth herein"). This office encourages the DAO and Mr. Rothstein to continue to communicate to facilitate providing records efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably).

Joseph A Pieropan, Esq. SPR18/1984 Page 3 December 17, 2018 Conclusion Accordingly, for the reasons described above, I find it is unnecessary to opine on the DAO's petition for an extension of time to produce records. The DAO is advised it must provide the records in a manner consistent with the Public Records Law and its Access Regulations. Mr. Rothstein may appeal the substantive nature of the DAO's response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Kevin Rothstein