Tommy Birks v. Hampden County District Attorney's Office (SPR 20191679)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor o.f Records September 3, 2019 SPR19/1679 Joseph Pessolano, Esq. Records Access Officer Hampden County District Attorney's Office Hall of Justice· 50 State Street Springfield, MA O1 102 Dear Attorney Pessolano : I have received a petition from Tommy Birks appealing the denial of the Hampden District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Birks requested legal records including: 3 volumes of pretrial transcripts, interview notes of witnesses, and memoranda, notes, and files of the former District Attorney as it pertained to his criminal case. The DAO provided a response to Mr. Birks on August 8, 2019. This office received a letter from Mr. Birks on August 19, 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 ofreceipt of the request. G. L. c. 66, § lO(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, § 1O (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

Joseph Pessolano, Esq. SPR19/1679 Page 2 September 3, 2019 Appeal The DAO's August 81 h response to Mr. Birks explains that "[i]t is fundamental, as [Mr. Birks] seems to recognize, that an attorney's litigation notes fall under the category of work product which is neither nonnally discoverable nor within the definition of a public record for purposes of G.L. c. 66, sec. 10 and G.L. c. 4. sec. 7(26), which covers exempt documents." The DAO sent a supplemental email response to this office on August 20, 2019. The DAO concluded in their response that "Mr. Birks has previously been explicitly advised that since his case is on appeal, and, as he now also admits, he has other avenues with which to pursue his request (e.g. post-conviction discovery as provided in the M.R.Crim.P. Rule 30)." The DAO goes on to state "that [Mr. Birks] is required to utilize those other avenues instead of the public records law for very good policy reasons." It is unclear what exemption the DAO cited when withholding documents. If the DAO intends to withhold documents pursuant to the Public Records Law, an exemption must be prnvided. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based). Accordingly, the DAO is ordered to review the requests made by Mr. Birks 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@sec.state.ma.us. Sincerely, ~ u r r ~ Supervisor of Records cc: Tommy Birks