Michael W. Lodge, Sr. v. Suffolk County District Attorney's Office (SPR 20220057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 24, 2022 SPR22/0057 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Ms. Buruca, I have received the petition of Michael W. Lodge, Sr. 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 4, 2021, Mr. Lodge requested “… copies of [named individual] informant statements in redacted form…meaning their names, date of birth, ss, and addresses.” Previous appeal The request was the subject of a previous appeal. See SPR21/3207 Determination of the Supervisor of Records (December 13, 2021. The Office responded on December 14, 2021. Unsatisfied with the Office’s response, Mr. Lodge petitioned this office and this appeal, SPR22/0057, 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); 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. 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 SPR22/0057 Page 2 January 24, 2022 Status of the requestor; reason for the request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Lodge’s interest in obtaining the records shall have no bearing on the public nature of the record. Whereas, Mr. Lodge seeks the record for a court process, he may have a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Lodge may wish to consider another means of seeking to obtain any existing responsive records. The Office’s December 14, 2021 Response In its December 14th response, the Office stated, “[c]orrespondence regarding your active litigation will be treated as post conviction discovery and handled through the Superior Court and our Appeals Unit.” In a communication between an Office representative and a staff attorney, the Office confirmed that the matter is currently pending before the Suffolk Superior Court. See Commonwealth v. Michael Lodge, Docket No. 9584CR10154. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Claudia Buruca SPR22/0057 Page 3 January 24, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Michael W. Lodge, Sr.