Eleanor Umphres v. Norfolk County District Attorney's Office (SPR 20210025)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 20, 2021 SPR21/0025 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). 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); SPR20/1637 Determination of the Supervisor of Records (September 23, 2020); SPR20/1817 Determination of the Supervisor of Records (October 13, 2020). In my October 13th determination, I found the DAO must clarify what steps were taken in showing an exhaustive search was performed. The DAO provided a response on October 19, 2020. Unsatisfied with the October 19th response provided by the DAO, Attorney Umphres petitioned this office and this appeal, SPR21/0025, was opened as a result. Current Appeal In its October 19th response, the DAO asserts, “[t]o reiterate, in May 2019 ADA McGee requested that all files related to Commonwealth v. Joseph Labriola be retrieved from storage. He examined those boxes and identified a 1987 memo that indicated the NDAO did not possess the trial exhibits. ADA McGee contacted the criminal clerk’s office at Norfolk Superior Court and requested assistance locating the trial exhibits. The Norfolk Superior 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. SPR21/0025 Page 2 January 20, 2021 Court’s records noted that all evidence was returned to Massachusetts State Police Lieutenant James Sharkey on March 1, 1991… ADA McGee contacted the division of the Massachusetts State Police assigned to the NDAO. A review of their logs and memos from the 1990s did not yield any inventory or destruction of evidence related to Joseph Labriola’s case. ADA McGee then contacted the Massachusetts State Police Crime Lab. The Massachusetts State Police Crime Lab was able to locate evidence and provided copies to Attorney Natarajan and Attorney Umphres in August 2019. On October 10, 2019 ADA McGee sent Attorney Umphres an email detailing his efforts and explaining that no additional records were located and the search had been exhausted (see attached).” The DAO contends “[c]ontrary to Attorney Umphres’ claims it is appropriate for the NDAO to rely on prior searches conducted by ADA McGee and the Massachusetts State Police assigned to the NDAO. An extensive amount of time was expended looking for materials that may have been misfiled or not contained within Joseph Labriola’s case files. The NDAO is confident in the thorough and detailed searches previously conducted.” The DAO indicates “…in response to the public records requests, the NDAO renewed its search. The NDAO possesses three case boxes including the appellate file for Commonwealth v. Joseph Labriola. The NDAO physically inspected each box and was unable to locate responsive materials. The NDAO also searched for any cases involving Robert V. Rogers or Arthur Motsis. There were no records of these individuals beyond their involvement in Joseph Labriola’s case. Any responsive records would be contained within Joseph Labriola’s case files. Additionally, the NDAO reengaged with the Massachusetts State Police assigned to the NDAO. A search of their records did not yield responsive documents.” The DAO further indicates “[a]s previously explained, the outstanding records would have been created prior to the 1976 trial. There is no one at the NDAO with personal knowledge about the case from that time. Further, there is the 1987 memo that suggests the NDAO did not possess the trial exhibits. Likewise, the NDAO is unable to determine whether records were destroyed. The only evidence of destruction was the March 6, 1991 order. There are no other destruction orders located in Joseph Labriola’s file or in the Massachusetts State Police logs. The NDAO cannot attest if other records existed or destroyed.” Conclusion In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). However, under the Public Records Law, the DAO is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d).

Laura A. McLaughlin, Esq. SPR21/0025 Page 3 January 20, 2021 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). Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Eleanor Umphres, Esq.