Wayne Napolitano v. Berkshire District Attorney's Office (SPR 20201726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 28, 2020 SPR20/1726 Richard M. Mahoney, Esq. Deputy District Attorney Office of the Berkshire County District Attorney 7 North Street, PO Box 1969 Pittsfield, MA 01202 Dear Attorney Mahoney: I have received the petition of Wayne Napolitano appealing the nonresponse of the Office of the Berkshire 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 August 24, 2020, Mr. Napolitano requested “a record of all defendants within Berkshire county who were active police officers at the time of their arrest and had their criminal charges dropped after invoking the ‘Brave Act’ formerly known as the ‘Valor Act.’” 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 theNorfolk 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Subsequent to the intervention by a member of the Public Records Division, I learned that the Office provided Mr. Napolitano a response dated September 24, 2020. 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

Richard M. Mahoney, Esq. SPR20/1726 Page 2 September 28, 2020 Conclusion In light of the Office’s September 24th letter, I will now consider this administrative appeal closed. Mr. Napolitano may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Napolitano Andrew McKeever