Eleanor Umphres v. Norfolk County District Attorney's Office (SPR 20201637)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 23, 2020 SPR20/1637 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 Appeals This request is the subject of a previous appeals. See SPR20/0967 Determination of the Supervisor of Records (July 2, 2020); SPR20/1086 Determination of the Supervisor of Records (July 17, 2020). In my July 17th determination, I found it was unclear whether additional responsive records exist, or whether responsive records existed and were destroyed. The DAO was ordered to provide Attorney Umphres with a response in compliance with the Public Records Law and its Access Regulations. The DAO provided said response on July 24, 2020. Unsatisfied with the July 24th response provided by the DAO, Attorney Umphres petitioned this office and this appeal, SPR20/1637, was opened as a result. Current Appeal In its July 24th response, the DAO indicates “[o]n July 1, 2019 Attorney Umphres was permitted to inspect the case file of Joseph Labriola for material responsive to the New England Innocence Project’s post-conviction discovery requests. The NDAO provided the case file responsive to those requests and exhausted its search for records requested in discovery.” The DAO states “…there are no records pertaining to Robert V. Rogers or Arthur Motsis beyond 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. SPR20/1637 Page 2 September 23, 2020 those related to Joseph Labriola’s case. The NDAO understands and complies with the state’s retention policies. All investigatory records and felony prosecutions are maintained for ten years and all other cases are retained for six years. See https://www.sec.state.ma.us/arc/arcpdf /MA_Statewide_Records_Schedule.pdf. The request for records created in 1965-1973 and 1968- 2010 far exceeds the required retention period. Public Records Law only applies to information that is in the custody of the NDAO at the time the request is received.” The DAO further states it “Attorney Umphres’ reliance on G.L. c. 278A, §16(a) is misplaced. G.L. c. 278A, §16(a) was enacted on May 17, 2012; over forty years after Joseph Labriola’s murder trial. As previously explained and supported by a September 21, 1987 letter, the NDAO does not possess the trial exhibits and cannot be governed by procedures which did not exist at that time.” In her appeal, Attorney Umphres contends the DAO in its response “…referred to an inapplicable retention policy…” and lists six different “potentially-applicable schedules.” Attorney Umphres further contends “…as early as 1986, the Criminal Prosecution File…had a record retention requirement of 36 years.” Attorney Umphres states “…the NDAO’s search has not been exhausted. The NDAO had a duty to retain these records, and if the records have been destroyed, then where is the proof of destruction?....I am effective seeking only those records found within the Labriola case file.” Proper Retention Protocol 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). Despite the DAO’s responses, it remains unclear whether responsive records existed and were destroyed. See G. L. c. 66, § 10(a)(ii), (b)(ii). In light of Attorney Umphres appeal, the DAO has not demonstrated whether it followed proper records retention protocol in destroying any responsive records. I find the DAO must clarify which records existed and were destroyed, and provide confirmation that prior approval for any destruction was received. 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. Conclusion Accordingly, the DAO is to provide Attorney Umphres with a response in compliance with the Public Records Law and its Access Regulations within 10 business days. 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).

Laura A. McLaughlin, Esq. SPR20/1637 Page 3 September 23, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Eleanor Umphres, Esq.