Asim Amran v. Worcester County District Attorney's Office (SPR 20222827)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 22, 2022 SPR22/2827 Mark Relation, Esq. Records Access Officer Office of the Worcester District Attorney 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received a petition from Asim Amran appealing the response of the Office of the Worcester District Attorney (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 7, 2022, Mr. Amran requested “[a]ll MSP reports and transcripts of interviews…” of a number of identified individuals pertaining to the case Commonwealth v. Amran. The Office responded on November 18, 2022. Unsatisfied with the Office’s response, Mr. Amran petitioned this office and this appeal, SPR22/2827, 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

Mark Relation, Esq. SPR22/2827 Page 2 December 22, 2022 The Office’s November 18th response In its November 18, 2022 response, the Office stated, “[w]e are unable to provide the requested records as public records at this time. As you were the defendant in the case, the requested records constitute discovery materials that are not available unless ordered by the court under Mass. R. Crim. P. 30. The Public Records Law cannot be used to circumvent this rule because ‘discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed’ by the Supreme Judicial Court. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). G.L. c. 4, § 7(26)(a); G.L. c. 213, § 3.” The Office’s response did not contain the specificity required in a denial of access to public records. The Office must identify what records it has in its possession, custody or control that are responsive to Mr. Amran’s request. 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 ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. To the extent that the requested records exist, I find the Office must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Office is ordered to provide Mr. Amran with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Amran may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Asim Amran