Walter Wuthmann v. Suffolk County District Attorney's Office (SPR 20201402)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31, 2020 SPR20/1402 Claudia Buruca Records Access Officer Appeals Unit/ Public Records Unit Office of Suffolk County District Attorney One Bulfinch Place Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Walter Wuthmann of WBUR News appealing the nonresponse of the Office of Suffolk County District Attorney (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on June 19, 2020, Mr. Wuthmann requested the following information in regards to the “Brady” or “Giglio” lists, “any documentation, databases, lists or other records identifying the current number of officers in that list, the departments the officers work for, whether the officer is active or not, when the officer was placed on the list, and why the officer was placed on the list (criminal charges, internal disciplinary records, etc),…any documentation, databases, lists or other records identifying the number of cases dropped by line prosecutors because a law enforcement witness was named on the law enforcement exclusion list,… [and] any documentation, databases, lists, emails or other records identifying the criteria for placing a law enforcement officer on the law enforcement exclusion list.” Prior Appeal This request was the subject of previous appeal. See SPR20/1168 Determination of the Supervisor of Records (July 21, 2020). In my July 21st determination, I found the Office provided Mr. Wuthmann a response to his request on July 20, 2020. Whereas the basis of the appeal was opened as a result of the Office’s lack of response to Mr. Wuthmann’s request, I considered the administrative appeal closed. Unsatisfied with the Office’s response, Mr. Wuthmann petitioned this office and this appeal, SPR20/01402, was opened as a result. 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

Claudia Buruca SPR20/1402 Page 2 August 31, 2020 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, § 10A(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, § 10(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. G. L. c. 66, § 10(b)(iv). Current Appeal In its July 20th response, the Office states that “[w]hile this Office does maintain a document listing individuals about whom disclosures should be made, that document falls into the category of attorney work product. That is, it is maintained in the anticipation of litigation, in order to assist attorneys in this Office in conducting prosecutions in keeping with our obligations under Brady and Giglio. Thus, while this list aids prosecutors in keeping track of what information must be provided to defense counsel, the list itself is not subject to disclosure under the public records law, and this Office declines to produce it. See DaRosa v. New Bedford, 471 Mass. 446, 462 (2015).” In his appeal, Mr. Wuthmann contends “[t]he so-called ‘work product’ exemption is narrow and only applies to specific case strategy documents. The current list the DA’s office has in its possession should not be subject to exemption (d), as it is a reasonably completed factual study or report.” 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

Claudia Buruca SPR20/1402 Page 3 August 31, 2020 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 reports 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). Only portions of records that possess a deliberative or policymaking character and relate to an ongoing deliberative process are exempt from mandatory disclosure. Attorney Work Product The Supreme Judicial Court opined on the issue of attorney work product in DaRosa v. New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). DaRosa, 471 Mass. at 448. It 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 leading to opinions. Id. The court left open “the question whether opinion work product might no longer be protected once the litigation is concluded,” noting that the answer “may depend on the particular circumstances, such as the risk of similar litigation.” Id. at 459 n.16. Based on the Office’s response, I find that it has not met its burden to withhold the responsive records in their entirety as attorney work-product under Exemption (d). 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, § l0(a). Specifically, the Office has not demonstrated that the deliberative process pursuant to which the records were created remains ongoing, as required by Exemption (d). The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Wuthmann with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. A copy of any such response must be provided to this office.

Claudia Buruca SPR20/1402 Page 4 August 31, 2020 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: Walter Wuthmann