Laura Carey v. Suffolk County District Attorney's Office (SPR 20250352)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 20, 2025 SPR25/0352 Fredric F. Ignacio Records Access Officer Suffolk County District Attorney’s Office Public Records Department One Bulfinch Place Boston, MA 02114 Dear Mr. Ignacio: I have received the petition of Laura Carey, Esq., of the New England Innocence Project, appealing the response of the Suffolk 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 October 8, 2024, Attorney Carey requested, “correspondence related to Commonwealth v. Theodore Freeman.” On November 15, 2024, the Office provided Attorney Carey with a response. Unsatisfied with the Office’s response, Attorney Carey petitioned this office, and this appeal SPR25/0352, 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. 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

Fredric F. Ignacio SPR25/0352 Page 2 February 20, 2025 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 November 15th response In its November 15, 2024 response, the Office informed Attorney Carey, “…[o]ur Office is working to finalize production for this request and have started to filter out all non-responsive materials. [We] will reach out to you within the next 10 business days with a status update, that includes an expected date of production. Thank you again for you[r] continued patience regarding this matter.” Current Appeal In her February 6, 2025 petition, Attorney Carey asserts, “I write to appeal the denial of my October 8, 2024 public records request to [the Office]…” Timeliness in providing records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Attorney Carey submitted her request on October 8, 2024, and the Office has not provided the responsive records, nor cited an exemption for withholding records, I find the Office has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b). Consequently, the Office must provide Attorney Carey with an estimated date as to when it intends to complete its review and provide the responsive records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis.

Fredric F. Ignacio SPR25/0352 Page 3 February 20, 2025 Conclusion Accordingly, the Office is ordered to provide Attorney Carey 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. Attorney Carey 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: Laura Carey, Esq. Marc Phinney, Suffolk County District Attorney’s Office