Howard Friedman v. Hampden County District Attorney's Office (SPR 20241864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1864 John A. Wendel, Esq. Assistant District Attorney Hampden County District Attorney’s Office 1500 Main Street P.O. Box 15327 Springfield, MA 01115 Dear Attorney Wendel: I have received the petition of Attorney Howard Friedman appealing the response of the Hampden 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 May 31, 2024, Attorney Friedman requested the following records: [1.] A complete copy of the Hampden County District Attorney’s file in the case of Commonwealth v. Chris Graham, Docket Nos. 1723CR004891 & 1779CR00403 (Hampden Superior Court). [2.] All written communications, including e-mail messages, notes and letters, between the District Attorney’s office and any employee of the Office of the Attorney General, from March 12, 2024 to the present, regarding the case of Commonwealth v. Chris Graham. This includes any requests from the Office of the Attorney General for a copy of the Graham case file, and any responses from the District Attorney’s office. The Office responded on June 25, 2024. Unsatisfied with the Office’s response, Attorney Friedman petitioned this office, and this appeal, SPR24/1864, 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, 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

John A. Wendel, Esq. SPR24/1864 Page 2 July 11, 2024 § 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 June 25th Response In its June 25, 2024 response, the Office provides numerous responsive records, and cites Exemptions (c) and (d) of the Public Records Law for redacting the records and withholding others. See G. L. c. 4, § 7(26)(c), (d). Additionally, the Office argues that the records “concern pending litigation.” In his appeal petition, among other things, Attorney Friedman contends that “[t]he fact that the records may concern pending litigation is not relevant.” 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. This office has reviewed the trial court’s docket and verified that the civil litigation, relating to the records that are the subject of Attorney Friedman’s request, is active and ongoing in the Massachusetts Superior Court. See Chris Graham v. Commonwealth of Massachusetts, (Suffolk County Superior Court Docket No. 2484-CV-00677 (Jul. 1, 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). Please note that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

John A. Wendel, Esq. SPR24/1864 Page 3 July 11, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Howard Friedman, Esq.