Deirdre L. Thurber v. Worcester County District Attorney's Office (SPR 20222353)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 31, 2022 SPR22/2353 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Attorney Deidre Thurber, on behalf of Christian Muller, appealing the response of the Worcester 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 January 19, 2022, Mr. Muller requested, “all the materials [and] relative statements taken from [a named individual] on July 9, 2007, including but not limited to written memos, notes, statements, reports, audio and video tapes.” Previous Appeal This request was the subject of a previous appeal. See SPR22/1018 Determination of the Supervisor of Records (May 12, 2022). In my May 12th determination, I ordered the Office to clarify its claims for withholding responsive records under Exemption (f). Subsequently, the Office responded on May 25, 2022. Unsatisfied with the Office’s response, Attorney Thurber further appealed, and this case 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. 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. SPR22/2353 Page 2 October 31, 2022 Att’y 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. The Office’s May 25th Response In its May 25, 2022 response, the Office does not elaborate on its previous claims under Exemption (f), but instead states that it is withholding responsive records pursuant to Exemption (a) of the Public Records Law, and argues that this office should decline to accept the appeal because the responsive records are the subject of active litigation. See G. L. c. 4, § 7(26)(a); 950 C.M.R. 32.08(2)(b)(1) Active 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 its May 25th response, the Office argues that “the Supervisor of Records should deny this appeal because the defendant’s criminal case remains active.” In support of this argument, the Office explains that “because defendants may obtain relief under Mass. R. Crim. P. 30(b) ‘at any time,’ the Commonwealth’s litigation against the defendant effectively remains active.” Further, the Office argues that “because a criminal case is uniquely susceptible to a defendant’s challenge at any time, the Supervisor of Records should deny relief in the instant case.” In a March 4, 2022 letter to the Office, included with the appeal petition, Attorney Thurber states that “Mr. Muller’s case is over eleven (11) years old ... [and] he was convicted and his appeal denied.” Based on the information provided by the Office, and Attorney Thurber, I find that the Office has not demonstrated that the records at issue in this case are the subject of active litigation. Accordingly, I will proceed to address the Office’s arguments under the Public Records Law.

Mark Relation, Esq. SPR22/2353 Page 3 October 31, 2022 Status of the Requestor 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Muller’s status either as the person who provided the responsive statements, or as the individual convicted of the related crime, will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Under Exemption (a), the Office argues that “the requested materials are ‘by necessary implication’ exempt from disclosure under the public records law according to G.L. c. 4, § 7(26)(a),” and cites rule 30(c)(4) of the Massachusetts Rules of Criminal Procedure, which provides: Discovery. Where affidavits filed by the moving party under subdivision (c)(3) establish a prima facie case for relief, the judge on motion of any party, after

Mark Relation, Esq. SPR22/2353 Page 4 October 31, 2022 notice to the opposing party and an opportunity to be heard, may authorize such discovery as is deemed appropriate, subject to appropriate protective order. Mass. R. Crim. P. 30(c)(4). Under rule (3), the Office argues that Mr. Muller “is not entitled to post-trial discovery because he has filed nothing under rule 30, and he has not bothered to make any prima facie showing for relief. He is, however, attempting to circumvent the hurdles under rule 30 by invoking the public records law.” Upon review, it is unclear how the language of rule 30 specifically or by necessary implication permits the Office to withhold the requested records from disclosure. Consequently, I find the Office has not met its burden to withhold the records under Exemption (a) of the Public Records Law. Conclusion Accordingly, the Office is ordered to provide Attorney Thurber with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Deidre Thurber, Esq.