James P. McKenna, Esq. v. Office of the District Attorney - Middlesex District (SPR 20190532)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 25, 2019 SPR19/532 Robert Bender, Esq. Assistant District Attorney Office of the District Attorney - Middlesex County 115 Commonwealth A venue Woburn, MA 01801 Dear Attorney Bender: I have received the petition of James P. McKenna, Esq. appealing the response of the Office of the District Attorney - Middlesex County (District Attorney) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney McKenna requested a copy of: Any and all records that detail the policy or policies of [the District Attorney] relative to preservation or disposal of evidence, particularly evidence concerning narcotics, following the closure or apparent closure of a criminal case. This request seeks copies of the policies pursuant to retention of such evidence and of any policies by which such evidence would eventually be disposed. In its March 5, 2019 response, the District Attorney denied Attorney McKenna's request, stating, "[t]his Office will not provide the requested records pursuant to a Public Records Law request because the request appears to relate to open or pending criminal matters." Furthermore, you advised Attorney McKenna that he should seek the records for post-conviction matters by filing a motion pursuant to Mass. R. Crim. P. 30(b), pertaining to post-conviction discovery. The District Attorney also cites, Bougas v. Chief of Police of Lexington, 371 Mass. 59 (1976), to support denying the request. Furthermore, the District Attorney states, "I have noted that you have made an appearance on behalf of [a n identified person] in Middlesex Superior Court, dated May 17, 2018, [I]ndictment [N]o. 1481CR00231 ... and note that [the identified person] has open motions to withdraw her pleas in three other Middlesex Superior Court cases ... and that you have 'copied' [t he identified person] on your letter of request." 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

Robert J. Bender, Esq. SPR19/532 Page 2 March 25, 2019 Active litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the information provided in the District Attorney's March 5th response regarding how the responsive records relate to the subject matter of open motions to withdraw pleas in Middlesex Superior Court cases, I find these records are the subject of dispute in active litigation. Therefore, I decline to opine on this matter. See 950 C.M.R. 32.08(2)(b)(l); 1481CR00231; 9781CR00350; 0781CR00396; 0581CR00197. It should be noted that a change in the status of these actions could impact the applicability of 950 C.M.R. 32.08(2)(b)(l). Sincerely, Rebecca S. Murray Supervisor of Records cc: James P. McKenna, Esq.