Allison Jarmanning v. Middlesex District Attorney's Office (SPR 20221717)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 10, 2022 SPR22/1717 Kim Gouveia Public Records Access Officer Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Ms. Gouveia: I have received the petition of Allison Jarmanning, of WBUR, appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 27, 2022, Ms. Jarmanning requested, “[t]he mug shot or any photograph of [named person;] [a]ny police radio or dispatch traffic captured on October 19, 2019 regarding the death of [named person;] [and] [t]he audio recording of the 911 call that was placed on [identified date] regarding the death of [named person].” The Office responded on July 26, 2022. Unsatisfied with the response, Ms. Jarmanning petitioned this office and this appeal, SPR22/1717, 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 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. 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

Kim Gouveia SPR22/1717 Page 2 August 10, 2022 The Office’s July 26th Response In its July 26, 2022 response, the Office cited Exemption (f) and pending litigation to withhold the requested records. 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 a conversation between an Office representative and a senior attorney of the Public Records Division, the Office confirmed that the matter is currently pending before the Middlesex Superior Court. See Commonwealth v. Gregory Fairbairn Docket No. 2081CR00106 and that the proceedings are related to the requested records. 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, Manza Arthur Supervisor of Records cc: Allison Jarmanning Daniel M. DeBlander, Esq.