Lizbeth Kowalczyk v. Middlesex District Attorney's Office (SPR 20231249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 23, 2023 SPR23/1249 Daniel M. 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 Lizbeth Kowalczyk, of the Boston Globe, appealing the response of the Middlesex 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 March 28, 2023, Ms. Kowalczyk requested “... copies of all records listed on the Commonwealth’s Notice of Discovery... filed in Middlesex Superior Court dockets 2281CR00281 and 2281CR00282” The Office provided a response on March 29, 2023. Unsatisfied with the Office’s response, Ms. Kowalczyk petitioned this office and SPR23/1249, 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) (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). 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. SPR23/1249 Page 2 June 23, 2023 The Office’s March 29th Response In its March 29, 2023 response, the Office Cited Exemption (a) to withhold the requested records pursuant to the Criminal Offender Record Information (CORI) Act and Exemption (f) to withhold the requested records. In a conversation between an Office representative and an attorney of the Public Records Division, the Office advised that the following matters are currently pending before the Middlesex Superior Court. See Commonwealth v. Jimmy Kimera, Docket Number 2281CR00281 and Commonwealth v. Ismael Serunjogi, Docket Number 2281CR00282 and that the requested records are related to the proceedings. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). I further decline to opine on the applicability of Exemptions (a) and (f) to the requested records. It should be noted that a change in the status of this civil action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Lizbeth Kowalczyk