Wilbert Charles v. Middlesex District Attorney's Office (SPR 20230877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 15, 2023 SPR23/0877 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex County District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Wilbert Charles appealing the response of the Middlesex County District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 8, 2023 and March 7, 2023, Mr. Charles requested “…a complete copy of his case file, including police reports, photographs, medical reports and grand jury minutes.” Prior Appeals The requested records were the subject of prior appeals. See SPR23/0623 and SPR23/0624 Determination of the Supervisor of Records (Supervisor) (April 5, 2023). Subsequent to the opening of the prior appeals, I learned that the Office provided Mr. Charles with an April 4, 2023 response to his requests. Therefore, I closed the prior appeals due to the April 4th response. The Office’s April 4, 2023 Response In the April 4th response to Mr. Charles, the Office asserted: “[p]lease be advised that to the best of our knowledge this Office did not receive a copy of either of your underlying requests until receipt of these appeals from the [Supervisor’s] office. According we consider March 31, 2023, to be the date of receipt for purposes of your requests seeking a copy of your [case file]. We have requested your case file for review. Please be advised that it will take time beyond the initial 10 business day period to retrieve the case file from archives for review and further time to digitize and review 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

Daniel M. DeBlander, Esq. SPR23/0877 Page 2 May 15, 2023 for any exemptions under the [P]ublic [R]ecords [L]aw. We will keep you updated on the status of your request.” As a result of the Office’s April 4th response, and having not received any records, Mr. Charles petitioned the Supervisor, and the current appeal was opened. 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) (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…”); 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). 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. Timeliness of Providing Records In its April 4th response, the Office indicated that they intend to provide the responsive records; however, the Office informed Mr. Charles that it needs an extension of time beyond ten business days. See G. L. c. 66, § 10(b)(vi) (records access officer may identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein). To the best of my knowledge, to date, the Office has not provided Mr. Charles with records nor provided a status report on when the Office will commence production of the requested records. Therefore, the Office must clarify this matter, and if possible provide records on a rolling basis.

Daniel M. DeBlander, Esq. SPR23/0877 Page 3 May 15, 2023 Conclusion Accordingly, the Office is ordered to provide Mr. Charles with a response to his request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Wilbert Charles