Andrew Ryan v. Plymouth County District Attorney's Office (SPR 20202429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2429 Keith Garland, Esq. Assistant District Attorney/Records Access Officer Office of the District Attorney Plymouth District 166 Main Street Brockton, MA 02301 Dear Attorney Garland: I have received the petition of Andrew Ryan, of the Boston Globe, appealing the response of the Office of the District Attorney Plymouth District (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Mr. Ryan requested records pertaining to a December 11, 2013 motor vehicle accident regarding an identified person in the Town of Rockland, specifically: 1. Copies of any and all emails, memos, letters, and other correspondence with the Rockland Police Department regarding the crash, [an identified person], or the victim; 2. Copies of any and all emails, memos, letters, and other correspondence with the Boston Police Department regarding the crash, [an identified person], or the victim; 3. Copies of any and all emails, memos, letters, and other correspondence with South Shore Hospital regarding the crash, Mr. Tully, or the victim. This should include any records from South Shore Hospital; 4. Copies of any and all internal emails, memos, letters, correspondence, or other records regarding the crash, [an identified person], or the victim; 5. Copies of any and all emails, memos, letters, and other correspondence with the Boston City Hall Law Department or other Boston city officials regarding the crash, [an identified person], or the victim; and 6. A copy of any non-prosecution agreement with [an identified person] involving this case. 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

Keith Garland, Esq. SPR20/2429 Page 2 December 22, 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). Exemption (d) In its December 4, 2020 response, the DAO asserts that the names and DAO/business email addresses of the former DAO Assistant District Attorneys were redacted from the emails provided to Mr. Ryan due to the deliberative process under Exemption (d) of the Public Records Law. The DAO cites Exemption (d) and DeRosa v. City of New Bedford as applicable to withhold the names of DAO attorneys in the headers of the email communications. See DaRosa, 471 Mass. 446, 457 (2015) (deliberative process exemption protects open, frank inter-agency and intra-agency deliberations regarding government decisions). 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); - se - e -al-so- -E-nv-t-l. -P-ro-t-ec-ti-o-n -A-g-e-nc-y- v-. -M-i-n-k, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). 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.

Keith Garland, Esq. SPR20/2429 Page 3 December 22, 2020 The DAO’s December 4th response citing Exemption (d) and DaRosa does not meet the burden of specificity in withholding the names and email addresses of the DAO’s Assistant District Attorneys who communicated in the responsive emails. It is unclear how the employee names and email addresses constitutecommunications that are deliberative in nature and can be considered work product under the DaRosa decision and Exemption (d). Therefore, I find that the DAO has not met its burden of specificity in withholding the employee names and email addresses under Exemption (d). Existence of records responsive to Requests 1, 2, 3, 5, and 6 In its December 4th response, the DAO informed Mr. Ryan, “[i]n regard to the above requests 1, 2, 3, 5 and 6, the [DAO] has not located, and is not aware of the existence of, any records responsive to your request. It is unclear whether these records responsive to Requests 1, 2, 3, 5 and 6 existed and were permissibly destroyed or whether they never existed. The DAO must clarify this. Conclusion Accordingly, the DAO is ordered to provide Mr. Ryan 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: Andrew Ryan, Boston Globe