James W. Rosseel v. Plymouth County District Attorney's Office (SPR 20192190)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 12, 2019 SPR19/2190 Keith Garland, Esq. Assistant District Attorney Plymouth County District Attorney's Office 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of James Rosseel, Esq. appealing the response of the Plymouth County District Attorney's Office (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on August 27, 2019, Attorney Rosseel requested the following records: 1. A list of any and all evidence, including but not limited to any biological items or physical evidence, related to Mr. Rice's case that is currently in the possession, custody, or control of the [Office] or the Massachusetts State Police; and 2. To the extent that any of the evidence requested above is no longer in the custody or control of the Massachusetts State Police or the [Office] (e.g., destroyed, released, etc.), please provide chain-of-custody documentation, such as the date(s) the items were released and the reason(s) they are no longer in custody or control of the Massachusetts State Police or the [Office]. The Office responded on September 11, 2019, indicating that it does not possess responsive records. Unsatisfied with the Office's response, Attorney Rosseel petitioned this office and this appeal, SPR19/2190, was opened as a result. 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). 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

Keith Garland, Esq. SPR19/2190 Page 2 November 12, 2019 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 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. The Office's September JJf" response In its September 11, 2019 response, the Office indicates that it is enclosing its " ... response letter to Rebecca Murray, the Supervisor of Records, regarding [Attorney Rosseel's] client's previous requests. As a result, [the Office] ha[s] no records responsive to [Attorney Rosseel' s] request." The Office attached the above referenced response dated August 13, 2019. The Office's August 13th response was provided in response to a prior appeal submitted by Mr. Jordan Rice. The Office's August 131 response " In its August 13, 2019 response, the Office, citing Motefusco, asserts that " ... as the investigation and these materials all relate to a sexual assault, they are all exempt from production under the public records law." The Office also cited G. L. c. 66, § 10; G. L. c. 41, § 97D and G. L. c. 265, § 24C to support its position to withhold records from disclosure. The Office also asserted that" ... with respect to any and all fingerprints: the fingerprints, identity of those fingerprinted, and related materials are exempt from production under the public records law." The Office explained that "[t]hese materials are exempt as investigatory materials and as production would improperly invade the privacy of the other persons who were fingerprinted. . . ." Further, the Office stated that" ... in so far as these materials were sought and used in the investigation and prosecution of the murder, they are exempt as Criminal Offender Record Information. These materials are CORI as they relate to a matter that was not dismissed prior to arraignment, and at a minimum they all 'relate to the nature and disposition of a criminal charge,' or 'other judicial proceedings.'" With respect to "bloody palm print materials[,]" the Office also asserted the above stated grounds to withhold these records from disclosure.

Keith Garland, Esq. SPR19/2190 Page 3 November 12, 2019 In his public records request to the Office, Attorney Rosseel attached a response from the Department of State Police (Department) to a similar public records request made by Ira Grant, Esq. The Department responded to Attorney Grant's request on April 7, 2015, stating the following: "[g]iven the nature of the records you have requested, the Department has forwarded your request [to] the Plymouth County District Attorney's Office. The response from that Office will include any responsive Department records that are not otherwise exempt from public disclosure as any response you receive from that office will be subject to the exemptions to the Public Records Law set forth in G. L. c. 4, sec. 7. Cl. 26 (a)-(q). Therefore further inquiries with respect to your request should be directed to the Plymouth County District Attorney's Office." 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In light of the above, it remains unclear how the Office does not possess responsive records. Consequently, the Office must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records were destroyed, the Office must demonstrate whether it followed proper records retention protocol. Conclusion Accordingly, the Office is ordered to provide Attorney Rosseel with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, Rebecca S. Murray Supervisor of Records cc: James Rosseel, Esq.