Andrew Quemere v. Middlesex District Attorney's Office (SPR 20230905)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2023 SPR23/0905 Daniel DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Andrew Quemere appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). On December 6, 2022, Mr. Quemere requested the complete case file for a named individual. Prior Appeals The requested records were the subject of a prior appeal. See SPR22/2914 Determination of the Supervisor of Records (January 6, 2022). See SPR23/0527 Determination of the Supervisor of Records (April 3, 2023). In my April 3rd determination, I found that the Office did not meet its burden to withhold records in their entirety pursuant to Exemption (a). As a result I ordered the Office to provide a further response. On April 18, 2023, the Office responded. Unsatisfied with the Office’s response, Mr. Quemere petitioned this office and this appeal, SPR23/0905, 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(d)(iv) (written response must “identify 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 DeBlander, Esq. SPR23/0905 Page 2 May 17, 2023 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). The Office’s April 18th response In the Office’s April 18, 2023 response, it stated the following: This letter is in further response to your December 6, 2022, request of this Office under the Public Records Law, M.G.L. c. 66, § 10 et seq., and subsequent appeals with the Supervisor of Records. SPR22/2914, SPR23/0527. You are seeking a copy of “the complete case file for the Victor Rosario arson/murder case.” By letters on December 20, 2022, and January 23, 2023, this Office indicated that records requested are exempt from public disclosure pursuant to exemption (a) (statutory) of the Public Records Law, M.G.L. c. 4, § 7, cl. twenty-sixth, as it constitutes Criminal Offender Record Information (CORI). CORI is defined in relevant part as “records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge… [or] other judicial proceedings.” M.G.L. c. 6, § 167; see also 803 C.M.R. 2.03 The Office further explained that: This Office continues to understand your request to implicate CORI as it is a request for a specifically identified individual’s criminal history and case file. While we understand the public interest in better understanding high profile cases of this nature, we are also cognizant that Massachusetts law makes it a criminal offense punishable by imprisonment for not more than 1 year or by a fine of not more than $5,000 or both to “knowingly communicate or attempt to communicate criminal offender record information” to individuals except in accordance with M.G.L. c. 6, §§ 168-175. Absent further determination or clarification concerning the statutory scheme governing public dissemination of CORI, we continue to understand ourselves to be barred from disclosing records in response to such a request. In camera inspection In order to facilitate a determination as to the applicability of the Exemption (a) claim made by the Office to withhold responsive records, the Office must provide this office with un- redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records.

Daniel DeBlander, Esq. SPR23/0905 Page 3 May 17, 2023 The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Andrew Quemere