David Proulx v. Office of the District Attorney - Essex District (SPR 20190481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 14, 2019 SPR19/0481 David F. O'Sullivan, Esq. Office of.the District Attorney - Essex District 10 Federal Street Salem, MA 01970 Dear Attorney O'Sullivan: I have received the petition of David Proulx appealing the response of the Office of the District Attorney-Essex District (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Proulx requested "all records relevant to [an identified case]." The Office denied his request claiming the responsive records are exempt from disclosure pursuant to the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a) of the Public Records Law. G. L. c. 6, § 167 et seq.; G. L. c. 4, § 7(26)(a). 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). 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, § 1 O(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

David F. O'Sullivan, Esq. SPR19/0481 Page2 March 14, 2019 Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Proulx's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Proulx may wish to consider another means of seeking to obtain any existing responsive records. Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b )(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In its response, the Office indicates that it "is in possession of the criminal file related to this matter. However, the material generally constitutes Criminal Offender Record Information that is not subject to disclosure under the Public Records Law." The Office further indicates that "the defense was already provided a complete complement of discovery in connection with the criminal case. The Office will not expend time and resources to do so again absent a court order. Mass. R. Crim. P. 30(c)(4)(providing for post-conviction discovery upon a showing of a prima facie case for relief)." The Office is advised that 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, § lO(a)(ii). The Office's response did not contain the specificity required in a denial of access to public records. Instead, the Office's response merely cites the CORI Act and Exemption (a) without any further explanation as to the exemption's applicability to the requested records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Office did not satisfy its burden in responding to this records request. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations.

David F. O'Sullivan, Esq. SPR19/0481 Page 3 March 14, 2019 Conclusion Given that the Office has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Office is ordered to review the records, redact where necessary, and provide Mr. Proulx with responsive records, provided in a manner consistent with this order, 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. The Office may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: David Proulx