Ted Daniel v. Norfolk County District Attorney's Office (SPR 20243218)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 12, 2024 SPR24/3218 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 Ted Daniel, of Boston 25 News, appealing the response of the Norfolk 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 October 8, 2024, Mr. Daniel requested the following: [1] Any emails, letters or any other type of communication between the Norfolk DA’s Office and any entity of the federal government re: the Karen Read case from July 1st, 2024 to present. [2] Any communication between the DA’s Office and Canton Police [specified police officer] from April 2024 to present. [3] All communication to/from or referencing [a named individual.] The Office responded on November 14, 2024. Unsatisfied with the Office’s response, Mr. Daniel petitioned this office, and this appeal, SPR24/3218, 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. 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. SPR24/3218 Page 2 December 12, 2024 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. Current Appeal In his appeal petition, Mr. Daniel argues the following: The record keeper indicated documents are being withheld based on various blanket exemptions. I’m requesting the Secretary of State to please compel the NDAO to identify every document they are withholding, and the specific exemption(s) applied. The burden lies with the NDAO to prove the exemptions are relevant. The Office’s November 14th Response In its November 14, 2024 response, the Office provides numerous responsive records in redacted form, and cites Exemptions (a), (d) and (f) of the Public Records Law for redacting the records, and for withholding others. See G. L. c. 4, § 7(26)(a), (d), (f). The Office also indicates that the responsive records are the subject of active litigation, and explains the following: Additional correspondence responsive to part three of your request related to an active and ongoing criminal investigation, including discussions related to trial preparation by prosecutors, have been withheld because they comprise of attorney work product reflecting strategic discussions regarding the Commonwealth’s case. . . . See also Commonwealth v. Karen Read, 2282CR00117 (trial scheduled for January 27, 2025). Disclosing any portion of the records before trial could amount to a premature disclosure of a piece of Commonwealth’s case prior to trial[.] 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. SPR24/3218 Page 3 December 12, 2024 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). 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: Ted Daniel