Laura A. McLaughlin, Esq. v. Massachusetts Sentencing Commission (SPR 20191847)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 16, 2019 SPR19/1847 Hon. Jeffrey A. Locke Chair Massachusetts Sentencing Commission John Adams Courthouse One Pemberton Square Bostol 1, MA 02108 Dear Judge Locke: I have received the petition of Laura McLaughlin, Esq. of the Norfolk County District Attorney's Office (NDAO) appealing the response of the Massachusetts Sentencing Commission (Commission) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney McLaughlin requested various categories of records related to sentencing guidelines. The Commission responded on July 12, 2019 and Attorney McLaughlin appealed. 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, § IOA(d); 950 C.M.R. 32.03(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical fonn 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, § IO(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. Appeal In its July 12111 response the Commission indicates, in part, "[p ]lease be advised that the Massachusetts Sentencing Commission is an independent commission in the judicial branch 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

Hon. Jeffrey A. Locke SPR19/1847 Page 2 September 16, 2019 the Commonwealth. See G.L. c. 21 lE § l(a) ('There is established, as an independent commission in the judicial branch of the commonwealth, a Massachusetts sentencing commission'). As a part of the judicial branch, the Sentencing Commission, though independent, is exempt from the public records law." The Commission also references 950 C.M.R. § 32.02 and Kettenbach v. Board of Bar Overseers, 448 Mass. 1019 (2007) and contends "[c Jonsequently, any request for public records pursuant to G.L. c. 66, § 10 from the Sentencing Commission, Justice Lu as its former Chairman, or Ms. Kavanagh as its Executive Director is inapposite and without effect." You also note that notwithstanding this position, the Commission could schedule a meeting to" ... explain the process and provide back-up documentation (Commission agendas, minutes of meetings, etc.) to the extent such materials are reasonably accessible." In her August 30th appeal petition Attorney McLaughlin objects to this response and contends, in part, "[r]ecords relating to the Sentencing Commission as an independent board must be provided." Attorney McLaughlin also provided a September 5, 2019 letter in support of its position that indicates "[o]n May 3, 2019, Judge Paula Carey, Chief Justice of the Trial Court specifically stated: '[t]he Sentencing Commission is not an arm of the Trial Court, nor is [it] under the control of the Trial Court. Rather, pursuant to G.L. c. 21 lE, § 1, the Sentencing Commission is 'an independent commission in the judicial branch of the commonwealth,' with · nine voting members appointed by the Governor, including three judges, two assistant district attorneys, and an assistant attorney generaL Judges who serve on the Sentencing Commission act not as designees of the Trial Court, but in the exercise of their independent judgment.' (emphasis added)." Attorney McLaughlin further notes "[t]he Norfolk District Attorney's requests are for conespondence related to the proposed guidelines, votes, publication, and training of the recommended guidelines. (See August 30th appeal and exhibits). The Norfolk District Attorney does not seek any judicial reasoning but rather the workings of an independent commission." She contends that "[r]ecords of the Sentencing Commission and those probation records related to how guidelines are being imposed are presumptively public and the Norfolk District Attorney has been advised that the proper forum to direct requests to would be 'the Sentencing Commission itself []. As an independent board, these records are public and the Norfolk District Attorney has an established right of access." I find that in light of the information provided in Attorney McLaughlin's appeal regarding the independence of the Commission, I find the Commission must clarify how the records at issue in this appeal are n~cords of the judicial branch that are not subject to the Public Records Law. Conclusion Accordingly, the Commission is to provide Attorney McLaughlin with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this

Hon. Jeffrey A. Locke SPR19/1847 Page 3 September 16, 2019 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.rna.us. Sincerely, ~a~ Supervisor of Records cc: Laura McLaughlin, Esq.