Maggie Mulvihill v. Berkshire District Attorney's Office (SPR 20230776)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 3, 2023 SPR23/0776 Joseph A. Pieropan, Esq. Assistant District Attorney Records Access Officer Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Pieropan: I have received the petition of Professor Maggie Mulvihill appealing the response of the Berkshire 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 11, 2023, Professor Mulvihill requested the following: Pursuant to Brady v. Maryland (1963), all records related to law enforcement officers or personnel in which issues with their credibility has been raised, including but not limited to so-called “Brady lists,” also known as “LEAD (Law Enforcement Automatic Discovery) lists” or “Do Not Call” lists.... from Jan. 1, 2017, to present. The Office responded on March 30, 2023, providing numerous responsive records. Unsatisfied with the Office’s response, Professor Mulvihill 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

Joseph A. Pieropan, Esq. SPR23/0776 Page 2 May 3, 2023 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. Current Appeal In her appeal petition, Professor Mulvihill contends that “the agency sent [her] a list of law enforcement personnel who are involved in criminal cases and may have an issue with credibility but did not supply the underlying records for each of them. That was covered by the scope of [her] request, and it is material [she has] received from other prosecutor’s offices.” The Office’s March 30th Response In its March 30, 2023 response, the Office provides various records, which it lists in its response as follows: 1. Brady Memorandum to ADAs, dated 12-30-2022, 2 pp.; 2. Berkshire District Attorney’s Office Brady Disclosure Policy, dated 7-28- 2020, 7 pp.; 3. Brady Evidence Disclosure Form, dated 7-28-2020, 2 pp.; 4. Letters from DA Andrea Harrington to Berkshire County Police Chiefs, dated September 10, 2020, 33 pp.; 5. SJC Decision – In the Matter of a Grand Jury Investigation, No. SJC-12869, 19 pp. The Office is 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). 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). Based on the Office’s response, and the issues raised in Professor Mulvihill’s appeal petition, it is unclear whether the Office possesses additional records responsive to her request. The Office must clarify this.

Joseph A. Pieropan, Esq. SPR23/0776 Page 3 May 3, 2023 Conclusion Accordingly, the Office is ordered to provide Professor Mulvihill with a response to her 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: Professor Maggie Mulvihill