Genevieve DiNatale v. Worcester County District Attorney's Office (SPR 20221942)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/1942 Mark Relation, Esq. Records Access Officer Worcester District Attorney’s Office 225 Main Street G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Genevieve DiNatale, of News Link Live, appealing the response of the Office of the Worcester 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 June 23, 2022, Ms. DiNatale requested the following records: [1] A copy of the arrest report and personnel narratives for all responding officers pertaining to the June 3 arrest of [an identified person and identified property locations] and charged with Firearm, Carry without a License, Firearm Discharge within 500 feet of Building, Firearm with FID Card, Possess, Ammunition without FID Card Possess, Firearm in Vehicle Leave; and [2] A copy of the arrest report and all the personnel narratives for the officers involved in the arrest of [an identified person at identified property locations] who were arrested on May 10, 2022 [at an identified property location] for License Suspended OP MV/Revoked, Unregistered Motor Vehicle, Uninsured Motor Vehicle, Possession of Large Capacity Magazine, No Inspection/Sticker. Prior Appeal This request was the subject of a previous appeal. See SPR22/1710 Determination of the Supervisor of Records (August 2, 2022). The Office responded on August 22, 2022. Unsatisfied with the response, Ms. DiNatale petitioned this office and this appeal, SPR22/1942, was opened as a result. 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

Mark Relation, Esq. SPR22/1942 Page 2 September 13, 2022 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) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Office’s August 22nd Response In its August 22, 2022 response, the Office cited Exemption (f) to withhold certain records and pending litigation. The Office further stated that “… one of the cases … has closed, so the requested records relating to that case will be reviewed and a separate response covering those records will follow.” 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 remaining case is currently pending before the Worcester Superior Court. See Commonwealth v. Lee Thomas, Docket No 2262CR002318 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) and I also decline to opine on the applicability of Exemption (f) to the requested records. 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).

Mark Relation, Esq. SPR22/1942 Page 3 September 13, 2022 Sincerely, Manza Arthur Supervisor of Records cc: Genevieve DiNatale