Jim Haddadin v. Suffolk County District Attorney's Office (SPR 20201775)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 6, 2020 SPR20/1775 Claudia Buruca Records Access Officer Appeals Unit/Public Records Unit Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Jim Haddadin, Investigative Producer of NBC10 Boston, appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Haddadin requested all records associated with the Office’s investigation into an identified June 2, 2015 incident. The requested records were the subject of a prior appeal. See SPR20/1667 Determination of the Supervisor of Records (Supervisor) (September 22, 2020). I closed the prior appeal after the Office provided Mr. Haddadin with a September 21, 2020 response. In its September 21st response, the Office provided a Sharefile link containing approximately 11 GB worth of responsive documents. The Office withheld records and/or portions of records pursuant to Exemption (d) due to on-going litigation at the Supreme Judicial Court entitled, Rahim v. Rachael Rollins, SJC-12884. The Office provided Mr. Haddadin with a link to request records responsive to his request from the FBI. The Office asserted, “…the public records [law] does not apply to records in custody of the federal agencies. Your request will be received as a request under the Freedom of Information Act (FOIA).” As a result of the Office’s September 21st response, Mr. Haddadin petitioned the Supervisor, and the current appeal was opened. 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 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 SPR20/1775 Page 2 October 6, 2020 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). In his petition, Mr. Haddadin asserts that the Office did not identify or describe the withheld records that are in its possession. He further states, “[w]e acknowledge the list of responsive records in this matter is voluminous, and therefore potentially burdensome to catalogue. However, at a minimum, the [Office] must satisfy its obligation to identify and describe those records that were withheld in their entirety.” 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 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). In its September 21st response, the Office asserts, “…a portion of the requested records remains subject to on-going litigation. Materials concerning ongoing litigation are exempt from production under the public records law under G. L. c. 4, § 7(26(d). See Lafferty v. Martha’s Vineyard Comm’n, 17 Mass. L. Rep 501 (Mass. Super. Ct. 2004).”

Claudia Buruca SPR20/1775 Page 3 October 6, 2020 I find that the Office’s response did not specifically demonstrate how the records withheld under Exemption (d) are inter-agency or intra-agency communications relating to a deliberative process and/or policy making. In addition, the Office has not explained whether any records or portions of the records withheld under Exemption (d) are factual in nature. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. - - - - v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Office did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure 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). Nor, has the Office claimed an exemption to withhold any records it may have received from the FBI. The Office did not identify all of the categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Additionally, the Office has indicated that some of the records are in the possession of a federal agency. It is unclear what of these responsive records the Office has in its possession and which exemption(s) the Office is claiming to withhold these. Conclusion Accordingly, the Office is ordered to provide Mr. Haddadin with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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, Rebecca S. Murray Supervisor of Records cc: Jim Haddadin, NBC Universal