Matthew Rocheleau v. Suffolk County District Attorney's Office (SPR 20211652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 20, 2021 SPR21/1652 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 Matthew Rocheleau of the Boston Globe appealing the response 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 SPR21/1652 Page 2 July 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 appeals The requested records were the subject of previous appeals. See SPR20/2524 Determination of the Supervisor of Records (January 5, 2021); SPR21/0857 Determination of the Supervisor of Records (April 20, 2021) and SPR21/1234 Determination of the Supervisor of Records (June 1, 2021). In my June 1st determination, I found the Office had not met its burden to withhold certain responsive records under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Accordingly, the Office was ordered to provide Mr. Rocheleau with a response. Subsequently, the Office provided a response on June 15, 2021. Unsatisfied with the Office’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/1652, 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

Claudia Buruca SPR21/1652 Page 3 July 20, 2021 custodian must provide the responsive records. The Office’s June 15th response In its June 15, 2021 response, the Office enclosed additional responsive records. However, with regards to audio and video files, the Office states that these “. . . are being withheld based on the privacy exemption (c). . . . Please note, due to lack of access to our Multimedia Unit, [the Office] no longer ha[s] access to the necessary technology in order to provide audio and video redactions. Because [the Office] no longer can redact these multimedia items, [the Office] must withhold them entirely until [it] regain[s] access to the technology.” In his appeal petition, Mr. Rocheleau states “[t]he agency . . . said it was withholding responsive audio and video records because it claimed the office did not have access to the technology necessary to make redactions to the records. That is not an acceptable response under the public records law. It also does not seem realistic that the office could not figure out a way to get access to the technology to make the redactions. The office has had and used this technology regularly for years. . . .” The Office is advised that under the Public Records Law, “a records access officer . . . shall at reasonable times and without unreasonable delay permit inspection or furnish a copy of any public record as defined in clause twenty-sixth of section 7 of chapter 4, or any segregable portion of a public record, not later than 10 business days following the receipt of the request. See G. L. c. 66, § l0(a). Based on the Office’s response, it remains unclear why the Office cannot provide the records, nor why it does not have the ability to provide segregable portions of the responsive records. See 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). Any non- exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Mr. Rocheleau with a response to the 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.

Claudia Buruca SPR21/1652 Page 4 July 20, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew Rocheleau Mark Arsenault