Maggie Mulvihill v. Worcester County District Attorney's Office (SPR 20230804)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2023 SPR23/0804 Mark Relation, Esq. Assistant District Attorney Records Access Officer Worcester County District Attorney 225 Main Street G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Professor Maggie Mulvihill 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 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 January 27, 2023, providing a list of individuals. 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

Mark Relation, Esq. SPR23/0804 Page 2 May 9, 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 she was “given partial records, an Availability Alert list, but none of the underlying Brady disclosure material relating to each name.” She further contends that she is “not confident [she has] been given all the records responsive to [her] request. The Office’s January 27th Response In its January 27, 2023 response, the Office states that it “does not use a Brady List” and goes on to explain that “there is no Brady List that [the Office] can provide in response to [Professor Mulvihill’s] public records request.” Instead, the Office provides “a list of all the individuals that have an availability alert associated with their name in DAMION.” The Office asserts that “this list does not constitute a Brady List.” With its response, the Office includes a list of approximately 85 individuals. 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). In this case, the Office has used its superior knowledge of the records in order to provide Professor Mulvihill with the list of individuals discussed above. However, it is unclear if the Office possesses additional records responsive to Professor Mulvihill’s request. The Office must clarify this. 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

Mark Relation, Esq. SPR23/0804 Page 3 May 9, 2023 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: Maggie Mulvihill