Brian E. Barreira v. Norfolk District Attorney's Office (SPR 20241354)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 17, 2024 SPR24/1354 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. SPR24/1354 Page 2 May 17, 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); SPR24/0783 Determination of the Supervisor of Records (March 29, 2024) and SPR/1202 Determination of the Supervisor of Records (May 2, 2024). In my May 2nd determination, I learned that the Office provided a further response to Attorney Barreira on April 23, 2024. Unsatisfied with the Office’s response, Attorney Barreira petitioned this office and this appeal, SPR24/1354, 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 23rd Response In its April 23, 2024 response, the Office stated, “... attached is the correct iteration of the records provided to Mr. Barreira on April 9. The records appended to Appeal SPR24-1202 (pages 20-80) were a previous version. In the current version, redactions were limited to the prefix of unpublished private email addresses, and potential witnesses in the trial of Commonwealth v. Karen Read, 2282CR00117, as noted in the responsive letter.” Current appeal In his appeal Attorney Barreira states, “[r]edactions of business email addresses continue to occur. The exception in M.G.L. c. 4, § 7 (26)(c) is supposed to relate narrowly to what may constitute an unwarranted invasion of personal privacy, yet almost every redaction is about information that is business-related and, perhaps more importantly, effectively hides the identity

Brandon P. Hunt, Esq. SPR24/1354 Page 3 May 17, 2024 of the recipient.” Attorney Barreira further states, “[t]o the extent that this 4/23/2024 email and its attachment may be deemed to be a Public Records or appeal response from NDAO, I hereby appeal it to the Supervisor of Public Records.” 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. In light of the pending matter, Commonwealth v. Karen Read, Norfolk Superior Court, Docket No. 2282CR00117, 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 Exemption (c). 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.