David Bernstein v. Plymouth County District Attorney's Office (SPR 20240010)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 16, 2024 SPR24/0010 Karen Palumbo, Esq. Assistant District Attorney Records Access Officer Plymouth County District Attorney’s Office 155 Main Street Brockton, MA 02301 Dear Attorney Palumbo: I have received the petition of David Bernstein 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 December 11, 2023, Mr. Bernstein requested, “. . . all email, phone, text communication with the [identified individuals] December 2020- present day.” The Office responded on December 11, 2023. Unsatisfied with the response. Mr. Bernstein petitioned this office and this appeal, SPR24/0010, 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 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). 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. SPR24/0010 Page 2 January 16, 2024 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 December 11th Response In its December 11, 2023 response, the Office cited Exemption (d) of the Public Records Law to withhold the requested records in their entirety. 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 December 11th response, the Office stated, “... at this time we cannot provide you with these documents because the documents are exempt from disclosure under G. L. c. 4, § 7 (26). In particular, the following exemptions apply to these documents: Deliberative Process G. L. c. 4, § 7 (26)(d) inter/intra agency memoranda/letters relating predecisional policy positions being developed by the agency; does not apply to factual studies/ reports on which the development of such policy positions. Work Product G.L. c. 4, § 7 (26) (d); DaRosa v. New Bedford, 471 Mass. 446, 461-462 (2015). Prosecutorial notes, case law & media research

Karen Palumbo, Esq. SPR24/0010 Page 3 January 16, 2024 prepared & compiled in anticipation of litigation, demonstrating the prosecutor’s thought processes.” Current appeal In his November 20, 2023 appeal, Mr. Bernstein asserts, “[m]y request focused on emails exchanged between the District Attorney’s office during the period surrounding the criminal charges against Mr. ... Specifically, I sought emails discussing the alleged incidents, evidence used in the prosecution’s case, and any communications related to Ms. ... claims, which was used as evidence during the trial ...” Based on the Office’s response, I find that it has not met its burden of specificity to withhold the records, in their entirety, pursuant to Exemption (d). The Office is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, the Office has not explained how the all the requested records constitute opinion work product prepared in anticipation of litigation. As a result, I find the Office has not met its burden to withhold the requested records under Exemption (d). Conclusion Accordingly, the Office is ordered to provide Mr. Bernstein with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Bernstein 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: David Bernstein