Brian E. Barreira v. Norfolk County District Attorney's Office (SPR 20240576)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2024 SPR24/0576 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Brian E. Barreira, Esq. appealing the response of the Norfolk 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 24, 2024, Attorney Barreira sent the Office the following: Attached and incorporated herein is part of a previous response to a public record request made by someone else. It certainly appears that [an identified individual] is very cooperative with members of the media, even perhaps to the extent of releasing information to them that was not part of the publicly-available record in a criminal case. I make the following requests: [1] See the 17th page, where on August 25, 2023 . . . emails . . . a link to the DA’s arguably unethical video statement and a transcript of it, along with a suggestion that the video be downloaded. Numerous email addresses are redacted in that email, and I request an un-redacted copy of it, and any email responses to it. For purposes of this request, please limit the response time to the period August 23, 2023 through and including September 15, 2023; and [2] See the 21st page, where on the same day, August 25, 2023, . . . emails . . . that he has “sent” the same video link “to a broad swath of outlets,” and any subsequent email communications back and forth with such recipients regarding the video and transcript; if the term “broad swath of outlets” seems undefined, I request all emails wherein he provides a link to that video statement, and all back- and-forth emails regarding it with the recipients. For purposes of this request, 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

Brandon P. Hunt, Esq. SPR24/0576 Page 2 March 5, 2024 please limit the response time to the period of August 23, 2023 through and including September 15, 2023. In a January 26, 2024 email to the Office, Attorney Barreira asserted, “[h]aving received no confirmation of receipt, I reiterate my public records request without the attachment in the original…” On January 26, 2024, the Office confirmed receipt of Attorney Barreira’s request. On February 7, 2024, the Office sent a response stating, “[we] write to request a two-week extension of time to respond to your public record request … Given the substantial number of public records requests our office is managing, along with other responsibilities, [we are] currently experiencing delay of approximately two weeks. Accordingly, [we] kindly request that the deadline to respond to your request be extended until Wednesday, February 21, 2024. This extension will provide [us] with sufficient time to review responsive records, redact where necessary, and obtain the required approvals before distributing any records.” On February 21st, the Office provided a further response, stating, “[t]he records are pending approval by our First Assistant. I’ve followed up with her and hope to have final approval to distribute them by tomorrow.” After not receiving the requested records, on February 23, 2024, Attorney Barreira petitioned this office, and this appeal was opened. 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 custodian must provide the responsive records. Subsequent to the opening of this appeal, in a March 4, 2024 telephone conversation, an attorney in the Public Records Division was informed by the Office that a response to Attorney

Brandon P. Hunt, Esq. SPR24/0576 Page 3 March 5, 2024 Barreira’s January 24th request, including responsive records, is in the process and is forthcoming. Timeliness in proving records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). Conclusion Accordingly, the Office is ordered to provide Attorney Barreira with said 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Brian E. Barreira, Esq.