Ashawda Nelson v. Middlesex District Attorney's Office (SPR 20251086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 5, 2025 SPR25/1086 Meagan Horn, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Horn: I have received the petition of Ashawda Nelson appealing the response of the Middlesex 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 January 12, 2025, Mr. Nelson requested, “...my personal grand jury minutes and police report” regarding a shooting on December 19, 2013.” The Office provided a response on April 9, 2025. Unsatisfied with the Office’s response, Mr. Nelson petitioned this office and SPR25/1086, 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. See 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 custodian must provide the responsive 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

Meaghan Horn, Esq. SPR25/1086 Page 2 May 5, 2025 Current appeal In his appeal, Mr. Nelson states, “I’m appealing my request denial due to the facts I’ve only requested my segment of grand jury.” Mr. Nelson appears not to be contesting the redactions to the Lowell Police reports. The Office’s April 9th Response In its April 9, 2025 response, the Office provided the Lowell Police reports in redacted form under Exemption (c). The Office also withheld grand jury minutes under Exemption (f) of the Public Records Law. In a supplemental response on May 2, 2025, the Office cited G. L. c. 268, § 13D(a), as it operates through Exemption (a) of the Public Records Law to withhold the grand jury minutes in their entirety. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The statute, G. L. c. 268, § 13D(a), provides in pertinent part: Whoever knowingly distributes or possesses with intent to distribute any transcript of grand jury testimony or any substantially verbatim description of

Meaghan Horn, Esq. SPR25/1086 Page 3 May 5, 2025 grand jury testimony with the intent to impede, obstruct, delay or otherwise interfere with any criminal proceeding, or the participation of any victim, witness or juror in any stage of a trial, grand jury, or other criminal proceeding, or the continued participation of any person furnishing information to a criminal proceeding, or the continued participation of any person furnishing information to a criminal investigator relating to a violation of any criminal statue, shall be punished by imprisonment in a house of correction for not more than 21/2 years or in the state prison for not more than 5 years, or by a fine of not more than $5,000, or both. Nothing in this subsection shall abridge any right protected by the First Amendment to the United States Constitution. G. L. c. 268, § 13D(a). Based upon the Department’s May 2nd response, and as the records are restricted from disclosure in their entirety by the Legislature under G. L. c. 268, § 13D(a), as it operates through Exemption (a), I find that the Office has met its burden in responding to this request under the Public Records Law. See G. L. c. 268, § 13D(a). Consequently, I decline to opine on the applicability of Exemption (f) to the grand jury minutes. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Nelson is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: Ashawda Nelson