David Chritson v. Middlesex District Attorney's Office (SPR 20251479)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 6, 2025 SPR25/1479 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 Appeals This request was the subject of previous appeals. See SPR25/0651 Determination of the Supervisor of Records (March 11, 2025) and SPR25/1136 Determination of the Supervisor of Records (May 8, 2025). In my May 8th determination, I found that the Office did not meet its burden to withhold records under Exemption (d) of the Public Records Law and the attorney- client privilege. I further directed the Office to clarify if additional responsive records exist. The Office provided a response on May 22, 2025. Unsatisfied with the Office’s response, Mr. Chritson petitioned this office and this appeal, SPR25/1479, 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). 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. SPR25/1479 Page 2 June 6, 2025 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 custodian must provide the responsive records. The Office’s May 22nd Response In its previous response, the Office stated “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.” The Office further 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. In its May 22, 2025 response, the Office confirmed that all responsive records have been provided. The Office additionally reiterated its claims under Exemption (d) for withholding the records, and provided the following: Please be further advised that the emails contain material protected from disclosure under exemption (d) (deliberative process) of the Public Records Law. See DaRosa v. City of New Bedford, 471 Mass. 446, 457-458 (2015) (exemption (d) designed to protect “open, frank, inter-agency and intraagency deliberations regarding government decisions”); see also Suffolk Const. Co. v. Division of Capital Asset Management, 449 Mass. 444, 458-459 (2007). Because no segregable portions exist, the emails cannot be provided.

Meagan Horn, Esq. SPR25/1479 Page 3 June 6, 2025 Current appeal In his appeal petition, Mr. Chritson states, “the RAO’s response is noncompliant with the Public Records Law, improperly withholds non-exempt factual information, [and] fails to satisfy the burden of specificity[.]” 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 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. Upon review, it is unclear from the Office’s May 22nd response and previous response what deliberative process remains ongoing or what legal or policy matters may be involved. Additionally, I find that the Office has not established how the records are “inter-agency or intra- agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2011) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City Of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intraagency” under FOIA exemption 5); SPR95/336 Determination of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies

Meagan Horn, Esq. SPR25/1479 Page 4 June 6, 2025 to governmental agencies or consultants). Additionally, it is unclear how the withheld records, in their entirety, constitute the type of “opinion” work product prepared in anticipation of litigation or for trial, as required under Exemption (d). See DaRosa, at 448. Further, the Office has not demonstrated that the records, in their entirety, are not factual in nature, nor that the withheld records are interwoven with opinions or analysis leading to opinions. See Id. Any information contained in the responsive records that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289- 290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must explain how segregable portions cannot be provided. Accordingly, I find that the Office has not satisfied its burden to withhold the records in their entirety pursuant to Exemption (d) of the Public Records Law. 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