Larry Smith v. Norfolk County District Attorney's Office (SPR 20250939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2025 SPR25/0939 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 Larry Smith, of the STIRM Group Inc., 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 February 5, 2025, Mr. Smith requested “electronic or paper copies of the following witness testimonies from [a specified] mistrial. I would like the transcripts of the following Massachusetts State Police Officers who testified in the case. They are [three named individuals].” The Office responded on April 4, 2025. Unsatisfied with the Office’s response, Mr. Smith petitioned this office, and this appeal, SPR25/0939, 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

Brandon P. Hunt, Esq. SPR25/0939 Page 2 April 22, 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. Current Appeal In his appeal petition, among other things, Mr. Smith argues the following: Considering the comprehensive public dissemination of these testimonies, no prejudice can reasonably occur from further disclosure. I urge immediate reversal of the denial and release of the requested records, even if redacted, to uphold transparency, the First Amendment, and compliance with Massachusetts Public Records Law. The Office’s April 4th Response In its April 4, 2025 response, the Office cites Exemption (f) of the Public Records Law for withholding responsive records, and also indicates that the records are the subject of pending litigation. See G. L. c. 4, § 7(26)(f). The Office explains the following: The records you seek are currently exempt from public disclosure because they pertain to an active and ongoing criminal prosecution, the disclosure of which would likely prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G.L. c. 4, § 7 (26)(f); Commonwealth v. Karen Read, 2282CR00117 (jury empanelment began on April 1, 2025). Release of these records at this time could possibly have an extraneous influence on prospective jurors. ... Further, the records, which consist of potential evidence and statements from witnesses, if disclosed could amount to a premature disclosure of a piece of the Commonwealth’s case prior to the resolution of the retrial, prejudicing the possibility of effective law enforcement. 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: 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 criminal litigation, relating to the records at issue in Mr. Smith’s request, is active and ongoing in the Norfolk Superior Court. See Commonwealth v. Karen Read, (Norfolk Superior Court, Docket No. 2282- CR-00117). In light of the pending matter, I decline to opine o this matter at this time. See 950

Brandon P. Hunt, Esq. SPR25/0939 Page 3 April 22, 2025 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: Larry Smith