Paul Revells v. Berkshire District Attorney's Office (SPR 20191544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of tpe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 16, 2019 SPR19/1544 Jeanne M. Kempthorne, Esq. Assistant District Attorney Chief of Appeals Berkshire District Attorney's Office 7 North Street, P.O. Box 1969 Pittsfield, MA. 01202 Dear Attorney Kempthorne: I have received a petition from Paul Revells appealing the denial of the Berkshire District Attorney Office (DAO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Revells requested legal records including: any and all police reports, incident reports, the list of exhibits presented at trial, and any laboratory test results and examining reports relating to evidence tested in a certain case. The DAO provided a response to Mr. Revells on July 25, 2019. This office received a letter from Mr. Revells on August 2, 2019 requesting an appeal. The Public Records Law Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days of receipt of the request. G. L. c. 66, § 10( a)-(b ). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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) (written response must "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 ... "); 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). 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

Jeanne M. Kempthorne, Esq. SPR19/1544 Page 2 August 16, 2019 Appeal The DAO provided a supplemental response on August 14, 2019 to this office. The DAO explained in the response "that all of the material Mr. Revells requested has already been produced to him, through his counsel." The DAO concluded in their response that "[t]here is no motion for new trial currently pending. Accordingly, Mr. Revells has no right to discovery under the Rules of Criminal Procedure. Rule 30(c)(4). Mr. Revells has no right to circumvent the Rules of Criminal Procedure by mean of the public records law." It is unclear if the DAO possesses the records requested by Mr. Revells. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). 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, § lO(a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). If the records are within the DAO's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). Accordingly, the DAO is ordered to review the requests made by Mr. Revells and provide any requested records in accordance with the Public Records Law, its Access Regulations and this order 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(msec.state.ma.us. Sincerely, ~u~ Supervisor of Records cc: Paul Revells