John Soares v. Bristol County District Attorney's Office (SPR 20221365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 23, 2022 SPR22/1365 Mary Lee, Esq. Assistant District Attorney Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Lee: I have received the petition of John Soares appealing the response of the Bristol 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 May 3, 2022, Mr. Soares requested: [1] The phone records of [a named individual] for [a specified date], as well as my phone records of [a specified date;] [2] Any/all receipt(s) from [a named company] for the towing of the red Ford Expedition; [3] Any/all copies of search warrant(s) and all affidavit(s) provided to obtain said warrant(s), and any written documents, emails, phone records, video recording(s), and notes, pertaining to said information; [4] A copy of the video recording of the arrival of the red Ford Expedition into the sallyport of the Fall River police station garage, and how it appeared before it was searched[;] [5] My department of Motor Vehicle license/I.D. [up until a specified date;] [6] Registration identification on black [Volkswagen] Jetta [driven] by me on [a specified night]. On May 23, 2022, the Office responded. Unsatisfied with the Office’s response, Mr. Soares petitioned this office and this appeal, SPR22/1365, 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 agency or 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

Mary Lee, Esq. SPR22/1365 Page 2 June 23, 2022 municipality 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. 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). Accordingly, Mr. Soares’ purpose in making the request has no bearing on the public status of any existing responsive records. The Office’s May 23rd Response In its May 23, 2022 response, the Office cites the privacy exemption, Exemption (d), and Exemption (f) for the withholding of the responsive records and notes that there is a pending criminal prosecution. In a June 21, 2022 supplemental response, the Office advises that: Mr. Soares requested records of his own criminal case that has an open appeal, [Commonwealth v. John I. Soares] A.C. No. 2018-P-0937, that is stayed pending the filing of post-conviction motions in the Superior Court [Commonwealth v. John I. Soares, 1273CR00441]…. Public dissemination of detailed information from Mr. Soares’ prosecution and the corresponding investigation is likely to be prejudicial to him in the event of a retrial. This office cannot publicly disclose records in a pending prosecution…. On this point alone, the pendency of the criminal prosecution, this appeal should be dismissed.

Mary Lee, Esq. SPR22/1365 Page 3 June 23, 2022 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: John Soares Patrick A. Michaud, Esq., Michaud Law Office