Annemarie Grant v. Norfolk County District Attorney's Office (SPR 20243417)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 7, 2025 SPR24/3417 Tracey B. Kelley, Esq. Assistant District Attorney Records Access Officer Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Kelley: I have received the petition of Annemarie Grant, appealing the response of the Norfolk County District Attorney’s Office (Office/NDAO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 17, 2024, Ms. Grant requested “all notes taken by MSP Trooper… on 02/07/2020 at the Brookline police station.” The Office responded on December 23, 2024. Unsatisfied with the response, Ms. Grant petitioned this office and this appeal, SPR24/3417, 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, § l0A(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 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

Tracey B. Kelley, Esq. SPR24/3417 Page 2 January 7, 2025 custodian must provide the responsive records. The Office’s December 23rd response In its December 23, 2024 response, the Office stated, “[Ms. Grant’s] request is duplicative of your January 29, 2024, public records request. Please refer to the NDAO’s April 1, 2024, response to your January 29, 2024, public records request.” In its April 1st response to a January 29th request, the Office stated, “[a]fter a diligent search, no responsive records were found. A public employee is not required to answer questions, do research, or create documents in response to questions posed in public records request.” Current Appeal In her appeal, Ms. Grant states: That 1/29/24 request stated “Please provide all of [an identified individual’s] notes from each of the 7 unrecorded interviews of the seven Brookline Police officers that took place on Feb 7th 2020 at the Brookline Police station. These are the Brookline PD Officer who were involved in the pursuit and/or at the scene of the shooting in Chestnut Hill. Bukhenik submitted his report summaries of the unrecorded interviews for the below -please provide notes taken during these interviews…” My position is that the request I am appealing from 10/17/2024 is a new request of which I provided supporting evidence that [a named individual] was indeed taking handwritten notes at these interviews and that Norfolk DA should have these in their possession since District Attorney[’s]… office allegedly did a thorough review of the… case. My request is not duplicative. I requested any notes taken. The previous 1/29/24 request requested specific interview notes of specific named individuals. Based on Ms. Grant’s appeal, it is unclear if the Office possesses any records responsive to the request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Office must clarify whether it possesses records responsive to the request. Conclusion Accordingly, the Office is ordered to provide Ms. Grant with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations

Tracey B. Kelley, Esq. SPR24/3417 Page 3 January 7, 2025 within 10 business days. A copy of the 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. Ms. Grant may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Annemarie Grant