Susan L. Bach v. Suffolk County District Attorney's Office (SPR 20231947)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 6, 2023 SPR23/1947 Andrew Doherty, Esq. Suffolk County District Attorney’s Office Records Access Officer One Bulfinch Place Boston, MA 02114 Dear Attorney Doherty: I have received the petition of Susan L. Bach appealing the response of the Suffolk 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 7, 2023, Ms. Bach requested records related to a specific review conducted by the Office, “including findings and the identity of the reviewers.” Previous Appeal This request was the subject of a previous appeal. See SPR23/0740 Determination of the Supervisor of Records (April 27, 2023) and SPR23/1601 Determination of the Supervisor of Records (July 26, 2023). In my July 26th determination, I ordered the Office to provide a supplemental response. Subsequently, the Office responded on August 14, 2023, providing numerous records in redacted form, and stating that the redactions consist of “confidential attorney work.” Unsatisfied with the Office’s response, Ms. Bach further 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

Andrew Doherty, Esq. SPR23/1947 Page 2 September 6, 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. The Office’s August 14th Response In its August 14, 2023 response, the Office indicates that it has redacted “three Microsoft Word documents” and “three emails” based on “confidential attorney work product.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. In its August 14th response, the Office provides three redacted Microsoft Word documents and states the following: To the extent that redactions remain, I have reviewed the redacted material and confirmed that the material is confidential attorney work product, in that it

Andrew Doherty, Esq. SPR23/1947 Page 3 September 6, 2023 contains an attorney’s thoughts, impressions, or opinions related to litigation in a criminal case. Additionally, the Office also states the flowing concerning three redacted emails: I have also reviewed the three emails (dated August 31, 2022; November 4, 2022; and December 30, 2014) from which I have redacted material on the basis of attorney work product. Having reviewed the redacted material, I am confident that the redacted material is confidential attorney work product, in that it contains an attorney’s thoughts, impressions, or opinions related to litigation in a criminal case. Under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the Office’s response, it is unclear how the responsive records constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa at 448. Further, the Office has not met its burden to show that the responsive records are not factual in nature, nor reasonably completed, nor that the records are interwoven with opinions or analysis leading to opinions. See DaRosa at 448. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Ms. Bach 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 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: Susan L. Bach