Matthew Rocheleau v. Suffolk County District Attorney's Office (SPR 20210857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 20, 2021 SPR21/0857 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Mr. Matthew Rocheleau of the Boston Globe appealing the nonresponse of the Suffolk 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). On November 5, 2020, Mr. Rocheleau requested the following: “[1] Any/all reports by employees of the Suffolk District Attorney Office, including but not limited to [identified Attorney], about a fatal crash involving [identified individuals] on July 3, 2018. [2] Any/all emails, other correspondence, and documents exchanged between employees of the Suffolk District Attorney Office, including but not limited to [identified Attorney], and employees of either the California DMV, the Massachusetts RMV officials, or both of those motor vehicle agencies regarding [identified individual]. [3] Any/all emails, other correspondence, and documents exchanged between employees of the Boston Police Department, including by not limited to Fatal Collision Investigative Team members: [identified officers], and employees of either the California DMV, the Massachusetts RMV officials, or both of those motor vehicle agencies regarding [identified individual]. [4] Any/all video footage described below: [a] Footage recovered on July 3, 2018, video camera footage from Homeland Security Camera #53 located at Massachusetts Avenue and Columbia Road. These files were recovered and digitally archived as ‘Eddy Everett Sq.’ contained one sub-folder archived as ‘C11 - Columbia - Mass- 20180703- 144500 [b] Footage recovered on July 3, 2018 from outside the 224 Boston Street Restaurant. These files were recovered and digitally archived as ‘224 Boston 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

Claudia Buruca SPR21/0857 Page 2 April 20, 2021 St’ contained two sub-folders archived as ‘ch08_20180703144804’ and ‘ch08_20180703144818. [c] Footage recovered on July 9, 2018, from outside the Dunkin Donuts located at 256 Boston Street. These files were recovered and digitally archived as ‘Dunkin Donuts’ contained three sub-folders archived as ‘Clip_1,’ ‘Clip_2’, ‘Clip_3” [5] Supplemental Report to I#182052234 filed by [identified officer] on 7/03/2018 [6] Any/all photos, videos, and/or written/typed documents describing an inspection and search of a 2016 black Toyota Camry conducted on July 13, 2018 by members of the Collision Team along with members of the Crime Scene Response Unit. The Camry had been driven by [identified individual] on July 3, 2018. The inspection and search were completed under the authority of an unnumbered Search Warrant issued out of Suffolk Superior Court by Judge Robert Tochka. The search of the interior was conducted by [identified officer].” Previous appeal The requested records were the subject of a previous appeal. See SPR20/2524 Determination of the Supervisor of Records (January 5, 2021). In my January 5th determination, I ordered the Office to provide Mr. Rocheleau with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Subsequently, the Office provided a response on March 3, 2021, which included responsive records. Unsatisfied with the Office’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/0857, 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); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

Claudia Buruca SPR21/0857 Page 3 April 20, 2021 The Office’s March 3rd response In its March 3, 2021 response, the Office enclosed responsive records and indicated that it redacted the following: [1] Personal identifying information (including civilian witness names, dates of birth, addresses, social security numbers, driver’s license numbers) (G.L. c. 4, § 7 cl. 26(c)); [2] Autopsy report and photographs (G.L. c. 4, § 7(26)(a) and (c); G.L. c. 38, § 2; LeBlanc v. Commonwealth, 457 Mass. 94, 96 (2010); Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 136 (1989)); [3] Attorney work product (DaRosa v. New Bedford, 471 Mass. 446, 462 (2015)); [4] Victim/Witness Advocate notes (Commonwealth v. Liang, 434 Mass. 131 (2001)); [5] Criminal Offender Record Information and any information obtained through Criminal Justice Information Systems (including booking photographs, police reports, motor vehicle information, and criminal charges) (G.L. c. 4, § 7(26)(a); G.L. c. 6, §§ 167A, 172); [and] [6] Search warrants and materials obtained through search warrants (G.L. c. 276, §§ 3; 3A; Commonwealth v. George W. Prescott Publ’g Co., LLC, 463 Mass. 258, 268 (2012)). In his appeal petition, Mr. Rocheleau states: [1] For one, the office has failed to say if any documents were withheld in their entirety. [2] Likewise the office has failed to say if there were no responsive records for any particular portion(s) of the request. [3] Finally, the office also sent five files that are in a format that the Globe is unable to view or access. (Each appears to be a video file that can only be played on certain software). Therefore the Globe requests that the office either arrange a time that a reporter can view those videos at the office or, if possible via Zoom/video conference. Alternatively, if it’s easier for the office to convert the files to a more standard format, that would work as well. (The five files are: Clip_1.avi; Clip_2.avi; Clip_3.avi; C11 - Columbia - Mass-20180703- 144500.dvt; and 07242018.exe)[.] In light of the above, it is unclear if the Office withheld any responsive records or did not have records responsive to certain items of the original request. Also, it is uncertain if the Office can provide the 5 video files in a format that can be viewed by Mr. Rocheleau. Conclusion Accordingly, the Office is ordered to provide Mr. Rocheleau with a response to the

Claudia Buruca SPR21/0857 Page 4 April 20, 2021 request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Matthew Rocheleau