Lewis E. Floyd III v. Bristol County District Attorney's Office (SPR 20230064)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 26, 2023 SPR23/0064 Courtney Almeida, Esq. Assistant District Attorney Bristol District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Almeida: I have received the petition of Lewis Floyd appealing the response of the Bristol 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). In December 2022, Mr. Floyd made multiple requests for various categories of records. The Office responded on December 27, 2022, providing numerous records in redacted form, and withholding others. Unsatisfied with the Office’s response, Mr. Floyd 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. 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. 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

Courtney Almeida, Esq. SPR23/0064 Page 2 January 26, 2023 Current Appeal In his petition to this office, Mr. Floyd appeals the following five parts of the Office’s December 27, 2023 response: 1. POST Commission evidence ... 2. The emails between [two specifically named Assistant District Attorneys regarding a specific case] ... 3. ... Public records sought pertaining to [a specifically named Officer regarding specific criminal cases from 2004] 4. ... a Brady List ... 5. The DAMION case management database records ... The Office’s December 27th Response In its December 27, 2022 response, the Office provides numerous records in redacted form, states that it is withholding others under Exemption (d), and indicates that it does not possess other records. See G. L. c. 4, § 7(26)(d). Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a

Courtney Almeida, Esq. SPR23/0064 Page 3 January 26, 2023 reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Regarding the “emails between two specifically named Assistant District Attorneys regarding a specific case,” under Exemption (d), the Office argues the following: These items are not public records. Records, specifically e-mails, created during the pendency of the investigation constitute work product prepared and compiled in anticipation of litigation. Those materials are exempted from disclosure under the Public Records Law. ... All written intra-office and inter-office communications are exempt from public disclosure as work product. In this case, it is unclear how the responsive records, in their entirety, constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Office has not demonstrated that the responsive records are not factual in nature, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa, at 448. The Office must clarify these matters. Records in Existence; Possession, Custody, or Control Please be advised that, the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Regarding the POST Commission records, in its December 27th response, the Office states that it “has attached one record in response to this request.” In his appeal petition, Mr. Floyd argues that “three other officers should have been reported to ... the P.O.S.T. Commission.” Based on the information provided in Mr. Floyd’s appeal petition, it is unclear whether the Office possesses additional records responsive to this portion of the request. The Office must clarify this. Regarding the request for a Brady List, the Office states that it “does not maintain a Brady list and therefore, [the Office does] not have any responsive records to this request.” Although the Office may not maintain a “Brady List,” it is unclear whether the Office is able to use its superior knowledge of the records in order to provide the information Mr. Floyd is seeking. The Office must clarify this. Records Retention Regarding the “reports generated by a specifically named Officer regarding specific

Courtney Almeida, Esq. SPR23/0064 Page 4 January 26, 2023 criminal cases from 2004,” the Office states the following: [The] office does not have any responsive records. These records have been destroyed pursuant to the Records Retention Schedule which requires [the] office to retain District Court files for four years. MA Statewide Records Schedule updated 2022-10-31.pdf. Where the Office indicates that some responsive records were destroyed pursuant to the Records Retention Schedule, I find that the Office must demonstrate whether it followed proper records retention protocol. See G. L. c. 66, §§ 1, 8, 13, 15. Specifically, the Office must provide a copy of the applicable signed Form RMU-2 - Application for Destruction Permission. Addressed in Separate Appeal With regard to the DAMION case management database, please note that Mr. Floyd’s appeal of the Office’s fee estimate is under consideration in a separate appeal, SPR23/0063. Regarding Mr. Floyd’s objections to the Office’s claims for withholding these specific records, please be advised that where the Office has yet to produce the records, I find this matter cannot be addressed at this time, as the contents of these records are unclear. Once records are provided, Mr. Floyd may appeal the substantive nature of the Office’s response within ninety calendar days. See 950 C.M.R. 32.08(1). Conclusion Accordingly, the Office is ordered to provide Mr. Floyd with a response to his 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: Lewis Floyd (by mail) Rachel T. Rose, Esq (by mail)