Susan L. Bach v. Suffolk County District Attorney's Office (SPR 20233040)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2024 SPR23/3040 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 “the records for all of the documents related to the ‘review’ referenced in [a specified] response.” In a February 23, 2023 email, Ms. Bach further specified that she seeks “all records related to the review, including findings and the identity of the reviewers.” Previous Appeals This request was the subject of previous appeals. See SPR23/0740 Determination of the Supervisor of Records (April 27, 2023), SPR23/1601 Determination of the Supervisor of Records (July 26, 2023) and SPR23/1947 Determination of the Supervisor of Records (September 6, 2023). In my September 6th determination, I found that the Office had not met its burden to redact the responsive records pursuant to Exemption (d) of the Public Records Law. Subsequently, the Office responded on September 29, 2023, and again on November 9, 2023, providing responsive records in redacted form, and reiterating its claims for redacting the records pursuant to Exemption (d) based on attorney work product. 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, 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. SPR23/3040 Page 2 January 3, 2024 § 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. Attorney 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. 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 September 29th and November 9th Responses In its September 29, and November 9, 2023 responses, the Office provides six responsive documents in redacted form, and explains that some redactions have been removed relevant to the records previously provided to Ms. Bach. The Office explains that the remaining redactions consist of attorney work product. See G. L. c. 4, § 7(26)(d). 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

Andrew Doherty, Esq. SPR23/3040 Page 3 January 3, 2024 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 September 29th response, the Office provides “the six .pdf documents that are the subject of this appeal” in redacted form. In its November 9th response, the Office argues the following for redacting the records as attorney work product: [T]he requestor is seeking records related to a criminal case that was initiated by the Massachusetts State Police and prosecuted by this Office. After the criminal case resulted in a conviction, there was significant post-conviction litigation related to the conviction that was also handled by this Office, as well as further analysis of the integrity of the conviction after that litigation failed to secure the defendant a new trial. The records sought by the requestor included internal communications by and between prosecutors, all attorneys, who were evaluating and reviewing the conviction, and the redacted material contains what I have specifically identified in the produced records, in good faith, as confidential attorney work product, in that its disclosure would reveal an attorney’s confidential thoughts, impressions, and opinions about a legal matter, or is a factual analysis that is entirely tied to confidential opinion work product. Additionally, in its September 29th response, the Office provides the following specific explanations alongside each redaction of how the redacted material constitutes attorney work product: The contents of [a specified] email includes an attorney’s thoughts, impressions, and opinions about a conversation between the attorney and a party to litigation. . . . The contents of [a specified] document contain an attorney’s thoughts, impressions, and opinions about three specific issues raised by a party in litigation. The contents also include an attorney’s analysis and application of the facts underlying the claims. . . . The remaining redacted material contain attorney work product, in that their disclosure would reveal the thoughts, impressions, analysis or opinions related to an evaluation of claims raised in litigation. . . . [T]he redacted material contains an attorney’s thoughts, impressions, opinions or analysis of issues related to litigation. . . . The redacted material reflects an attorney’s thoughts, impressions, analysis, or opinions about an attorney’s review of litigation and legal claims related to a criminal case.

Andrew Doherty, Esq. SPR23/3040 Page 4 January 3, 2024 Where the Office has explained that the remaining redactions, constitute opinion work product, as described in DaRosa, I find that the Office has met its burden in redacting the responsive records pursuant to Exemption (d). See G. L. c. 4, § 7(26)(d); see also DaRosa, at 448. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Bach is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Susan L. Bach