Colman M. Herman v. Suffolk County District Attorney's Office (SPR 20192335)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 4, 2019 SPR19/2335 Claudia Buruca Records Access officer Suffolk County District Attorney's Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Colman Herman appealing the response of the Suffolk 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 November 1, 2019, Mr. Herman requested a copy of " ... a letter, memorandum, and/or the like to the Boston Police Department presenting the results of [the Office's] investigation" regarding employees of the Boston Public Library. On November 19, 2019, the Office provided a response denying access to responsive records under the attorney work product doctrine. Unsatisfied with the Office's response, Mr. Herman petitioned this office and this appeal, SPR19/2335, was opened as a result. While this appeal was pending, the Office provided a supplemental response dated November 21, 2019. 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). 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. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Claudia Buruca SPR19/2335 Page 2 December 4, 2019 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(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 November 191 " and 2JS1 responses In its November 19, 2019 response, the Office asserts that it " ... declines to produce that email based on attorney work product (DaRosa v. City ofN ew Bedford, 471 Mass. 446 (2015))." In its November 21, 2019 supplemental response, the Office explains that "[t]he email in question was written by an ADA in the office to a member of the prosecutorial investigation team at BPD. It starts with a brief summary of the actions taken during the investigation, and then it quickly goes into the prosecutor's legal conclusion regarding the case." The Office states that the email" ... set[s] out the issues of the case and why it would be difficult to pursue those charges, especially in meeting the highest burden of proof that is held in criminal cases." As such, the Office asse1is that the requested record or email is " ... opinion work product, as opposed to fact work product." Exemption (d) Exemption ( d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. C. 4, § 7(26)(d). Exemption ( d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec'y of the Exec. Office of Human Servs., 403 Mass. 230,237 n.8 (1988). Factual rep01is which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Protection Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). In_DaRosa, the Supreme Judicial Court (Court) concluded that "opinion" work product that was prepared in anticipation of litigation or for trial by or for a paiiy or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. The Court also concluded that "fact" work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption ( d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis

Claudia Buruca SPR19/2335 Page 3 December 4, 2019 leading to opinions. Id. Based on the foregoing, I find the Office has not established how the withheld record constitutes work product that may be withheld as contemplated in DaRosa. Particularly, it is unclear how the responsive record was prepared by the Office in anticipation of litigation or for trial. Fmiher, it is unclear why the record must be withheld in its entirety. The Office must clarify whether there are segergable portions that can be provided. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Conclusion Accordingly, the Office is ordered to provide Mr. Herman 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, ~ I T ~ Supervisor of Records cc: Colman Herman