Michael D. O'Farrell v. Fitchburg District Court (SPR 20210292)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 18, 2021 SPR21/0292 Carol Vittorioso, Esq. Acting-Clerk-Magistrate Fitchburg District Court 100 Elm Street Fitchburg, MA 01420 Dear Attorney Vittorioso: I have received the petition of Michael O’Farrell appealing the response of the Fitchburg District Court (Court) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2021, Mr. O’Farrell requested all court records detailing, “… the extensive property damage along the 153' property line [of a named address] including cutting and uprooting of several trees, bushes and shrubs and … [identity of the neighboring property caretaker] … [resulting in] a show cause hearing at the Fitchburg District Court on December 9, 2020.” Unsatisfied with the Court's response, Mr. O’Farrell appealed and SPR21/0292 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 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). 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

Carol Vittorioso, Esq. SPR21/0292 Page 2 February 18, 2021 The Court’s January 13th Response In a response dated January 13th, the Court stated, “[w]ith respect to your request for records from the show cause hearing, the public records law, G.L. c. 66. § 10 does not apply to the judiciary. See Kettenbach v. Ed. of Bar Overseers. 448 Mass. 1019, 1020-21 (2007)." Accordingly, whereas the Supreme Judicial Court held that records of the Judiciary are not subject to the Public Records Law, I am unable to assist Mr. O’Farrell in this matter. See Kettenbach v. Board of Bar Overseers, 448 Mass. at 1020; Lambert v. Exec. Dir. of the Judicial Nominating Counsel, 425 Mass. 406, 409 (1997). Therefore I must consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael O’Farrell