Frank L. Stanley v. Office of the District Attorney - Northwestern District (SPR 20182052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 3, 2019 SPRlS/2052 Cynthia M. Von Flatern, Esq. Assistant District Attorney Office of the District for the Northwestern District One Gleason Plaza Northampton, MA O1 060 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, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Stanley requested emails from certain individuals involving an identified case. The DAO responded on October 22, 2018 by providing copies of certain records as well as a privilege log. 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, § 1O A( 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, § lO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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. SPR18/2052 Page2 January 3, 2018 Appeal Existence ofa dditional records In its October 22nd response the DAO indicates " ... enclosed please find hard copies of emails that were contained in within the file." In his appeal petition Mr. Stanley indicates" ... emails they sent do not go as far back as to the beginning." He also notes he requests" ... copies of those retained documents by the D.A. in their digital file system." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § IO(a)(ii). I find the DAO must clarify whether it possesses any additional responsive records. Attorney-client privilege Mr. Stanley also indicates he objects to portions of the DAO's privilege log. In a letter to the DAO dated November 18, 2018, Mr. Stanley objects to specific emails that the DAO withheld as "work product." In particular, he asserts "[t]he case nolle prosequi, thus, this exemption does not apply" and that certain individuals "are employees of the government and/or municipal and part of the prosecution team thus, exemption does not apply." The Public Records Law requires that in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records "shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed." G. L. c. 66, § IOA(a). I find the DAO must explain the grounds upon which the attorney-client privilege is being claimed for the emails at issue. The DAO must also explain how the emails at issue may be withheld as work product. See DaRosa v. New Bedford, 471 Mass. 446 (2015) (concluding that 'opinion' work product that was prepared in anticipation oflitigation or for trial by or for a party or its representative falls within the scope of Exemption (d) and that 'fact' work product under Mass. R. Civ. P. 26(b) (3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions). Conclusion Accordingly, the DAO is ordered to provide Mr. Stanley with a response to the request prepared in a manner consistent, this order, the Public Records Law and its Regulations within 10 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.

Cynthia M. Von Flatern, Esq. SPR18/2052 Page 3 January 3, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Frank Stanley