Eleanor Umphres v. Norfolk County District Attorney's Office (SPR 20201086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2020 SPR20/1086 Laura A. McLaughlin, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney McLaughlin: I have received the petition of Attorney Eleanor Umphres appealing the response of the Norfolk County District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 12, 2020, Attorney Umphres requested four categories of records, including communications between named individuals, as well as “incident reports, arrest records, investigation files, police reports, papers, photographs, and recorded tapes.” Attorney Umphres also requested “to view Exhibit No. 62 from Commonwealth v. Labriola (1973): phone records.” Previous Appeal This request is the subject of a previous appeal. See SPR20/0967 Determination of the Supervisor of Records (July 2, 2020). In my July 2nd Determination, I found the DAO provided Attorney Umphres with a supplemental response on June 30, 2020. Whereas the DAO had sent Attorney Umphres a supplemental response addressing her appeal, I considered the appeal closed. Unsatisfied with the June 30th response provided by the DAO, Attorney Umphres petitioned this office and this appeal, SPR20/1086, was opened as a result. Current Appeal In its June 30th response, the DAO indicates “The NDAO has diligently and repeatedly responded to discovery requests made by Attorney Umphres in her role at the New England Innocence Project. Although she indicates disassociation with the Innocence Project, the NDAO communicated with her and her supervisor, Attorney Radha Natarajan regarding substantially similar discovery requests as recently as October 2019…Attorney Umprhes’ was permitted to physically inspect and copy all records within the NDAO’s custody.” 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

Laura A. McLaughlin, Esq. SPR20/1086 Page 2 July 17, 2020 The DAO further states it “has exhausted its search for additional materials. As detailed by the emails supplemented to this overview, the NDAO reviewed over forty-five boxes of unrelated cases from this time period looking for any material that may have been misfiled. The NDAO provided documentation from 1987 indicating the NDAO did not possess exhibits. Additionally, the NDAO assisted Attorney Umphres and Attorney Natarajan in obtaining materials from the Massachusetts State Police Crime Lab which were not within the NDAO’s custody or control…[a]ny other records unrelated to the murder prosecution would have been destroyed pursuant to the state’s retention policies as the investigation occurred over forty-five years ago. The NDAO does not possess any public records beyond what was already provided to Attorney Umphres in May-October 2019.” In her appeal, Attorney Umphres contends “I am not the screening counsel of record. As such, my four public records requests…should be treated as separate and distinct from any prior discovery requests made by my former supervisor at the New England Innocence Project. Insofar as portions of my current four requests have already been addressed by the NDAO (in response to an organization from which I am now dissociated), I disagree that the NDAO has ‘exhausted its search for additional materials’… Exhaustion implies a complete search, and a complete search should have yielded either the records I seek (which the NDAO has a statutory duty to have preserved – M.G.L. 278A § 16(a)) or proof of destruction. As neither has been produced, I am left to conclude that the NDAO’s search has not been exhausted.” Attorney Umphres further indicates “Related, ADA McLaughlin wrote: ‘The NDAO has provided Attorney Umphres access to and copies of everything within our custody and control’…ADA McLaughlin is relying on prior efforts (by ADA McGee) that responded to prior requests (for the case file for Commonwealth v. Joseph Labriola) made by a prior entity (the New England Innocence Project). She has not, to my knowledge, made any attempt to search for the specific public records that I am now currently requesting.” Records in Existence 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, § 10(a)(ii). In light of the issues raised in Attorney Umphres’s appeal regarding the existence of responsive records, and despite the DAO’s responses, I find it is unclear whether additional responsive records exist, or whether responsive records existed and were destroyed. See G. L. c. 66, § 10(a)(ii), (b)(ii). If such records were destroyed, the DAO must demonstrate whether it followed proper records retention protocol. Please note, the DAO must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the DAO to review the records retention materials available online at www.sec.state.ma.us/arc/arcrmu/rmuidx.htm.

Laura A. McLaughlin, Esq. SPR20/1086 Page 3 July 17, 2020 Based on Attorney Umphres’s appeal and the DAO’s responses, it is unclear whether responsive records exist within the possession of the DAO. The DAO must clarify this matter. Conclusion Accordingly, the DAO is to provide Attorney Umphres with a response in compliance with the Public Records Law and its Access Regulations as soon as practicable. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Attorney Umphres may appeal the substantive nature of the DAO’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Eleanor Umphres, Esq.