David Bernstein v. Plymouth District Attorney's Office (SPR 20240176)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 31, 2024 SPR24/0176 Karen Palumbo, Esq. Assistant District Attorney Plymouth County District Attorney’s Office 166 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 16, 2023, Mr. Bernstein requested copies of records pertaining to a specific criminal case. Specifically, Mr. Bernstein requested “any and all discussions, texts, emails, phone records” between named individuals. The Office provided a response on January 2, 2024. Unsatisfied with the response, Mr. Bernstein petitioned this office and this appeal, SPR24/0176, 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. 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 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. SPR24/0176 Page 2 January 31, 2024 custodian must provide the responsive records. The Office’s January 2nd response In its January 2, 2024, the Office states that “[t]exts and emails regarding Commonwealth v. Amrith Maharajh, 2183CR00190, are exempt from disclosure under G. L. c. 4, § 7(26).” The Office cites G. L. c. 41, § 97D as it operates through Exemption (a) as well as Exemption (d) to withhold the requested records. In a supplemental response dated January 31, 2024, the Office states the following regarding the criminal case at issue in the requested records: The motion for new trial and release were filed on the 23rd of January and the Commonwealth has 21 days to respond to those motions. The individual seeking the emails is suggesting that the prosecution in this case withheld exculpatory evidence, that there was prosecutorial misconduct and possible Brady Violations. They rely on findings from a probate court judge regarding the victim in a probate matter. Both the prosecution and the defense had those findings prior to trial. The requester does not like the outcome in this case and questions the credibility of the victim. (See Attached) The credibility of the victim is the province of the fact finder. The requester states that the emails are ‘critical to pursuing a new trial.’ The defendant has an attorney who filed the motion for new trial and he could receive whatever he feels is necessary through the discovery process. The requester has no standing to file anything in a criminal matter. Active 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 active matter, 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 Office’s claims under Exemptions (a) and (d) of the Public Records Law, to support the withholding of the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Karen Palumbo, Esq. SPR24/0176 Page 3 January 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: David Bernstein