Yelena Levich v. Medford, City of - Police Department (SPR 20242340)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 16, 2023 SPR23/2340 Marc Phinney Assistant District Attorney Suffolk County District Attorney’s Office One Bulfinch Street Boston, MA 02114 Dear Mr. Phinney: I have received the petition of Darius Gibson appealing the response of the Suffolk County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2023 Mr. Gibson requested, “color ballistic photos of CC#1000290203, as well as color crime scene photos for CC#1000290203.” The Office responded on September 11, 2023. Unsatisfied with the Office’s response, Mr. Gibson petitioned this office and this appeal, SPR23/2340, 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 town 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. The Office’s September 11th Response In its September 11, 2023 response, the Office provided Mr. Gibson with the responsive records on a thumb drive. 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

Marc Phinney SPR23/2340 Page 2 October 16, 2023 In a letter to the Office on September 14, 2023, Mr. Gibson stated, “I am unable to view the USB drive. I’m in prison [and] I’m requesting the pictures be physically mailed to me.” Current Appeal In his appeal petition, Mr. Gibson states, “I notified [the Office] I couldn’t use a USB drive. I need printed documents mailed to me. I’m in prison unable to access a USB drive.” Based on the above, it is unclear if the Office is able to produce the records in the format requested by Mr. Gibson in his September 14th communication. A records access officer shall “to the extent feasible, provide public records to a requester in electronic format unless the record is not available in electronic form or the requester does not have the ability to receive or access the records in electronic format and if feasible, in the requester’s preferred format. . . . Where the requester is an individual held in custody in any correctional facility, as defined in M.G.L. c. 125, § l(d), the records access officer shall presume that the requester does not have the ability to receive or access records in usable electronic form” 950 C.M.R. 32.04(5)(d). Conclusion Accordingly, the Office is ordered to provide Mr. Gibson with a 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: Darius Gibson