Brian E. Barreira v. Norfolk County District Attorney's Office (SPR 20241304)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 13, 2024 SPR24/1304 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk 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, § l0A; see also 950 C.M.R. 32.08(1). On January 24, 2024, Attorney Barreira requested 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, please limit the response time to the period of August 23, 2023 through and 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. SPR24/1304 Page 2 May 13, 2024 including September 15, 2023. Prior Appeals The requested records were the subject of prior appeals. See SPR24/0576 Determination of the Supervisor of Records (March 5, 2024) and SPR24/0783 Determination of the Supervisor of Records (March 27, 2024). In my March 27th determination, I learned that the Office intended to provide a further response. The Office responded on April 25, 2024. Unsatisfied with the Office’s response, Attorney Barreira petitioned this office and this appeal, SPR24/1304, 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 custodian must provide the responsive records. The Office’s April 25th Response In its April 25, 2024 response, the Office cited Exemption (d) attorney work product and referenced the pending criminal trial, Commonwealth v. Karen Read, Norfolk Superior Court, Docket No. 2282CR00117. The Department states: Records responsive to parts one and two of your request comprise of attorney work product and are withheld pursuant to G.L. c. 4, § 7 (26)(d) (inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency). The work product rule exempts from discovery “those portions of records, reports, correspondence, memoranda, or internal documents of the adverse party which are only the legal research, opinions, theories, or conclusions

Brandon P. Hunt, Esq. SPR24/1304 Page 3 May 13, 2024 of the adverse party or its attorney and legal staff.” Mass. R. Crim. P. 14(a)(5). Rule 14 “preserves the ‘core’ of the work product doctrine by ‘shelter[ing] the mental processes of the attorney.’” Commonwealth v. Paszko, 391 Mass. 164, 187 (1984), quoting United States v. Nobles, 422 U.S. 225, 238 (1975). “Where an agency… is engaged in litigation, decisions regarding litigation strategy and case preparation fall within the rubric of ‘policy deliberation.’ A decision made in anticipation of litigation or during litigation is no less a ‘policy’ decision and is no less in need of the protection from disclosure provided by exemption (d) simply because it is made in the context of litigation.” (citation omitted). DaRosa v. City of New Bedford, 471 Mass. 446, 458 (2015). You were previously provided under the Public Record Law the final and completed transcripts of the statement delivered by the District Attorney on August 25, 2023. Disclosure of the requested drafts of that statement could reveal the thought processes and deliberations employed by the District Attorney. Such disclosure would potentially compromise the development and implementation of effective legal strategies, as well as potentially hinder an ongoing criminal investigation. See Attorney General v. Facebook, Inc., 487 Mass 109, 128 (2021) (“‘[w]hen a factual document selected or requested by counsel exposes the attorney’s thought processes and theories, it may be appropriate to treat the document as opinion work product, even though the document on its face contains only facts’” (citation omitted)). The records also contain discussions of an active and ongoing criminal investigation, the disclosure of which would probably prejudice the possibility of effective law enforcement. G.L. c. 4, § 7 (26)(f) (“investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest”). See Commonwealth v. Karen Read, 228CR00117. The “actual script” used by the District Attorney during recording, as requested in part three of your inquiry, was previously provided to you in our response dated April 9, 2024. Pending 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.

Brandon P. Hunt, Esq. SPR24/1304 Page 4 May 13, 2024 In light of the pending 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 applicability of the attorney work product doctrine under Exemption (d). 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). Sincerely, Manza Arthur Supervisor of Records cc: Brian E. Barreira, Esq.