David Chritson v. Middlesex District Attorney's Office (SPR 20251136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 8, 2025 SPR25/1136 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 David Chritson 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 December 23, 2024, Mr. Chritson requested, “all records [‘]made or received[’] by the Middlesex District Attorney’s Office and/or agents thereof, and related in any way to [an identified individual]. . . .” Previous Appeal This request was the subject of a previous appeal. See SPR25/0651 Determination of the Supervisor of Records (March 11, 2025). In my March 11th determination, I closed SPR25/0651 in light of the Office’s intent to provide a supplemental response. Subsequently, the Office responded on March 11, 2025. Unsatisfied with the Office’s response, Mr. Chritson petitioned this office, and this appeal, SPR25/1136, 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 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

Meagan Horn, Esq. SPR25/1136 Page 2 May 8, 2025 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. Chritson “challenges . . . [the Office’s] March 11, 2025 [‘]supplemental response,[’] in which ten responsive records were withheld in their entirety without adequate legal justification[.]” He additionally asserts, “[the Office] has not met [its] burden . . . to demonstrate that no additional responsive records exist.” The Office’s March 11th Response In its previous response, the Office indicated that it was unable to locate responsive records. The Office further advised Mr. Chritson that he may wish to provide further information regarding his request to enable the search to be processed. In its March 11, 2025 response, the Office identified ten responsive records in its possession and cited Exemption (d) of the Public Records Law and the attorney-client privilege to withhold the records in their entirety. Specifically, the Office stated the following: . . . we have reviewed our records and identified ten (10) emails between Assistant District Attorneys from this Office and Somerville PD referencing [an identified individual]. Please be advised that these emails are exempt from disclosure under exemption (d) (deliberative process) of the Public Records Law. See G.L. c. 4, § 7(26) (exemption (d)). Further, these emails are privileged as attorney-client communications and attorney work product. See DaRosa v. City of New Bedford, 471 Mass. 446, 453-454 (2015), and Suffolk Const. Co. v. Div. of Capital Asset Mgt., 449 Mass. 444, 445-446 (2007). As such, we are unable to provide you with any of these materials. The Office additionally noted in its March 11, 2025 response, “after a review of our internal records and confirming with our regional team captain, there are no past or current investigations with this Office in which [an identified individual is] an involved party.” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably

Meagan Horn, Esq. SPR25/1136 Page 3 May 8, 2025 completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). The Supreme Judicial Court (SJC) opined on the status of attorney work product under Exemption (d) in DaRosa v. City of New Bedford, 471 Mass. 446 (2015). In DaRosa, the SJC concluded that “opinion” work product that was prepared in anticipation of litigation or for trial by or for a party or its representative falls within the scope of Exemption (d). Id. at 448. It also concluded that “fact” work product under Mass. R. Civ. P. 26(b)(3) that was prepared in anticipation of litigation or trial falls within the scope of Exemption (d) where it is not a reasonably completed study or report or, if it is reasonably completed, where it is interwoven with opinions or analysis leading to opinions. Id. Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client’s search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapo & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege, the Supervisor of Records “shall not inspect the record but shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a).

Meagan Horn, Esq. SPR25/1136 Page 4 May 8, 2025 Burden of Specificity; Records in Existence The Office’s March 13th response did not contain the specificity required in a denial of access to public records. Please be advised that, under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is additionally uncertain why the records must be withheld in their entirety. Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any nonexempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Additionally, based on the information provided in Mr. Chritson’s appeal petition, it is unclear if the Office possesses additional responsive records. If the Office does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv). The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Chritson 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. Sincerely, Manza Arthur Supervisor of Records cc: David Chritson