Laura A. McLaughlin, Esq. v. Office of the Commissioner of Probation (SPR 20191853)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 16, 2019 SPR19/1853 Edward Dolan Massachusetts Probation Service One Ashburton Place Boston, MA 02108 Dear Mr. Dolan: I have received the petition of Laura McLaughlin, Esq. of the Norfolk County District Attorney's Office (NDAO) appealing the response of the Massachusetts Probation Service (Probation) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney McLaughlin requested 2 categories of records related to sentencing guidelines. Probation responded on July 23, 2019 and Attorney McLaughlin appealed. Tlte 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, § lO(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 23rd response Probation indicates "[p ]lease be advised that the Massachusetts Probation Service ('Probation') is part of the judicial branch of the Commonwealth. As a part of the judicial branch, Probation is exempt from the public records law. See G.L. c. 4, § 7, Twenty sixth ( defining 'public record'); 950 CMR § 32.02 ( excluding judiciary from definition 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

Edward Dolan SPR19/1853 Page 2 September 16, 2019 'governmental entity'); Kettenbach v. Board ofB ar Overseers, 448 Mass. l 019 (2007) ('Under these regulations, the public records law applies to only one of the three branches of government, namely, the Executive branch.') (emphasis added)." Attorney McLaughlin notes in her August 301 h appeal "[t]he Norfolk District Attorney's requests are for con-espondence 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" ... probation records related to how guidelines are being imposed are presumptively public." I find that in light of the information provided in Attorney McLaughlin's appeal, Probation must clarify how the records at issue in this appeal, specifically "those probation records related to how guidelines are being imposed," are records of the judicial branch that are not subject to the Public Records Law. Conclusion Accordingly, Probation 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 office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, ~a~ Supervisor of Records cc: Laura McLaughlin, Esq.