Kevin Rothstein v. Plymouth District Attorney's Office (SPR 20231760)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 14, 2023 SPR23/1760 Karen Palumbo, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of Kevin Rothstein, of WCVB-TV (CH 5), appealing the response of the Plymouth 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 January 20, 2023, Mr. Rothstein requested public records from two related cases, docket numbers 1883CR00050 and 1883CR00051: [1.] Surveillance video of [named persons] and an inmate inside the elevator on 11/8/17[;] [2.] Surveillance video of inmate secreting a package of drugs into his buttocks inside the lockup on 11/8/17[;] [3.] Surveillance video from 11/15/17 that shows [named persons] in a conference room with a tie and an envelope[;] [4.] Surveillance video from 11/15/17 of [named person] counting money in the elevator and placing it in his pocket[;] [5.] Surveillance video from 11/15/17 of [named person] escorting ... from the isolation cell back into the elevator (as identified in a police report)[;] [6.] Any surveillance video from 11/8/17 and 11/15/17 that shows the ... knocking on the second floor lockup door and interacting with court officers[;] [7.] Copy of recorded interview with [named] court officer... Prior Appeal This request was the subject of a previous appeal. See SPR23/1492 Determination of the Supervisor of Records (July 10, 2023). The Office responded on June 29, 2023. Unsatisfied with the response. Mr. Rothstein petitioned this office and this appeal, SPR23/1760, was opened as a result. 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

Karen Palumbo, Esq. SPR23/1760 Page 2 August 14, 2023 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 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. Att’y 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. The Office’s June 29th Response In its June 29, 2023 response, the Office provided the requested surveillance video to Mr. Rothstein, however, Mr. Rothstein was unable to view the video. The Office claims that it provided a copy of the video that was within its possession, custody and control. The Office stated that “[c]onverting the video is the equivalent of creating evidence.” Current appeal In his appeal, Mr. Rothstein states that the Office “provided me with a video file from a courthouse surveillance camera that is unreadable by anyone here at the television station, where we have substantial knowledge, equipment and software to handle video files. My understanding is that the video can only be played – and can be converted to another video format – using the proprietary software that originally created the video file.” Based on the Office’s response and Mr. Rothstein’s appeal, it is unclear if the Office can provide the video file in a format that is readable. The Office must clarify this matter. Conclusion Accordingly, the Office is ordered to provide Mr. Rothstein with a response to his 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

Karen Palumbo, Esq. SPR23/1760 Page 3 August 14, 2023 pre@sec.state.ma.us. Mr. Rothstein may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Kevin Rothstein