Adam Bradley v. Middlesex District Attorney's Office (SPR 20190754)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 24, 2019 SPR19/0754 Daniel M. DeBlander, Esq. Middlesex District Attorney's Office 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Adam Bradley appealing the response of the Middlesex District Attorney's Office (Office) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Bradley requested the following categories ofrecords: 1. Any and all Copies of Descriptions of intruders given to you or your Agent's, officers and employee's Regarding the July 7, 2012 Quintin Koehler homicide in Billerica MA. 2. A copy of the Report with "Darkskin-Black-Hispanic" Males Descriptions associated with the Quintin Koehler Homicide. 3. A copy of Both Theodore Hunt 911 Calls. Theodore Hunt is a neighbor of Quintin Koehler. 4. Any and all copies of Ryan Koehler's audio/video Recorded interviews; 5. Any and all Copies of Nick Capella's Recorded interviews whether audio/video. The Office provided a response to his request in a letter dated March 29, 2019. 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, § 1O (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 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

Daniel M. DeBlander, Esq. SPR19/0754 Page 2 April 24, 2019 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. Duty to comply; additional responsive records Under the Public Records Law, the Office is not required to create a record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 ofrecords at the time of the request. See G. L. c. 66, § 10(a )(ii). In its response, the Office indicates that with respect to the 4th and 5th categories of Mr. Bradley's request, those records "either do not exist or cannot be readily identified by the description provided in your request." The Office explains that "[n]o audio or visual recordings were made of interviews with these witnesses, and as such these requested records do not exist. With respect to the 2nd category of Mr. Bradley's request, the Office indicates that "[w]hile this Office cannot readily identify a specific report to which [Mr. Bradley's] request refers, to the extent [his] request concerns any reports related to a co-defendant in [his] underlying criminal case, this Office has provided all such reports during pretrial and prior post conviction discovery under the Rules of Criminal Procedure." Where the Office indicates that the records "either do not exist or cannot be readily identified by the description provided," it is unclear which records the Office does not possess and which records the Office is unable to identify. The Office must clarify this matter. Further, in accordance with the Public Records Law, a custodian is expected to use his superior knowledge of the records in his custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). This office encourages both parties to communicate further to enable the Office to provide responsive records. See G. L. c 66, § lO(a)(i) (the request must reasonably describe the public record sought). Further, it is uncertain whether the Office possesses additional responsive records. Specificity, it is unclear whether the Office possesses responsive records to the 1st and 3rd categories of Mr. Bradley's request. See G. L. c. 66, § lO(a)(ii); G. L. c. 66, § lO(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "). The Office must clarify this matter.

Daniel M. DeBlander, Esq. SPR19/0754 Page 3 April 24, 2019 Purpose of request; identity ofrequestor 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. Bradley'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"). In its response, the Office indicates that it "will not provide the requested records pursuant to a Public Records Law request because it is an inappropriate vehicle for post conviction discovery and the records being sought are available to [Mr. Bradley] through other applicable means." The Office indicates that "[w]here the requested records may be related to intended post-conviction litigation, disclosure should be sought pursuant to the rules of criminal procedure." The Office explains that "[t]here are mechanisms in place within the criminal rules which a criminal defendant in the post-litigation stage can use to obtain discovery in preparation for post-conviction litigation. In connection with post-conviction motions filed pursuant to Mass. R. Crim. P. 30(b), a criminal defendant may move for post-conviction discovery. See Mass. R. Crim. P. 30(c)(4). To do so, the defendant must first establish a prima facie claim for relief. He may then, through motion, request that the Commonwealth disclose information in its possession that he alleges is necessary to support that claim. See Mass. R. Crim. P. 30(c)(4). It is within the motion judge's discretion to authorize such discovery as is deemed appropriate. Id." Despite the Office's response, I find it is uncertain whether Mr. Bradley has a unique right of access to the requested records. Specifically, whereas Mr. Bradley indicates in his petition for appeal that he is "not seeking the records for [his] criminal case," it is uncertain whether the cited rule provides a method of access that is applicable under these circumstances. Conclusion Accordingly, the Office is ordered to provide Mr. Bradley with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations

Daniel M. DeBlander, Esq. SPR19/0754 Page 4 April 24, 2019 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Bradley