Sara A. Laroche, Esq. v. Middlesex District Attorney's Office (SPR 20210425)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 3, 2021 SPR21/0425 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Sara A. LaRoche, Esq. appealing the response of the Middlesex 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). On August 14, 2020, Attorney LaRoche requested “… records relating to two criminal dockets from 1986…” The Office responded on November 24, 2020. Unsatisfied with the response, Attorney LaRoche appealed and SPR21/0425 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(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 November 24, 2020 response The Office responded on November 24th and stated, “…the Office will not provide the 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

Daniel M. DeBlander, Esq. SPR21/0425 Page 2 March 3, 2021 requested records. Because your client was provided these files in discovery and because the records are related to his case, disclosure should be sought pursuant to the rules of criminal procedure. See Bougas v. Chief of Police of Lexington, 371 Mass. 59. 64 (1976).” The Office further asserted, “[i]n connection with post-conviction motions filed pursuant to Mass. R. Crim. P. 30(b), a criminal defendant may move for post-conviction discovery. See Mass. R. Crim. P. 30(c)(4 ).” Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity the exemption which applies. 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); - - - - - - Flatley, 419 Mass. at 511. See also 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). As a result, I find that the Office did not satisfy its burden in responding to this records request. Order Accordingly, the Office is ordered to review the request and provide a response to Attorney La Roche made in accordance with the Public Records Law, its Access Regulations and this order 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: Sara A. LaRoche, Esq.