Matthew Rocheleau v. Plymouth County District Attorney's Office (SPR 20202030)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 3, 2020 SPR20/2030 Keith Garland, Esq. Assistant District Attorney/Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Matthew Rocheleau of the Boston Globe appealing the response of the Plymouth 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). Specifically on June 24, 2020, Mr. Rocheleau requested, “… “Any/all records concerning law enforcement officers whose actions or involvement in a criminal proceeding must be disclosed, including, but not limited to, records about law enforcement officers that the Plymouth County District Attorney's office has determined may be challenged based upon credibility. This request includes, but is not limited to, disclosures the office has made in particular cases about particular officers as well as any such documents/records/correspondence/lists that your agency maintains or has access to, as well as any corresponding documents concerning the basis for why an officer's actions or involvement in a criminal proceeding must be disclosed.” Previous appeals This request was the subject of previous appeals. See SPR20/1299 Determination of the Supervisor of Records (August 13, 2020); SPR20/1661 Determination of the Supervisor of Records (September 24, 2020).Unsatisfied with the Office's subsequent response, Mr. Rocheleau appealed and SPR20/2030 was opened as a result. 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 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

Keith Garland, Esq. SPR20/2030 Page 2 November 3, 2020 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(d)(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). The Office’s October 12th response The Office identified the records in detail responsive to the request and asserted the responsive records are exempt under Exemptions (a), (c) and (d). In camera inspection In order to facilitate a determination as to the applicability of the Office's claims under Exemptions (a), (c) and (d) to withhold the records, the Office must provide this office with un- redacted copies of a representative sample of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record, See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Keith Garland, Esq. SPR20/2030 Page 3 November 3, 2020 Order Accordingly, the Office is ordered to provide this office with an un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau