Nikki Conway v. Norfolk County District Attorney's Office (SPR 20252297)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 20, 2025 SPR25/2297 Brandon P. Hunt, Esq. Assistant District Attorney Records Access Officer Norfolk District Attorney’s Office 42 Shawmut Road Canton, MA 02021 Dear Attorney Hunt: I have received the petition of Nikki Conway 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 July 8, 2025, Ms. Conway requested “the sidebar transcripts from the Karen Read ‘Trial 1’” and “the sidebar transcripts from the Karen Read trial 2.” Previous Appeal This request was the subject of a previous appeal. See SPR25/2161 Determination of the Supervisor of Records (August 6, 2025). In my August 6th determination, I closed SPR25/2161 in light of the Office providing a response to Ms. Conway on August 6, 2025. Unsatisfied with the Office’s response, Ms. Conway petitioned this office, and this appeal, SPR25/2297, 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

Brandon P. Hunt, Esq. SPR25/2297 Page 2 August 20, 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 the appeal petition, Ms. Conway argues the following: The current court order regarding sidebar transcripts from trial 1 explicitly states: “It is hereby ordered that sidebar conferences prior to trial and occurring during the trial that discuss evidentiary issues, shall be transcribed, and made available to counsel and the court. The Court finds that good cause exists to extend the impoundment order of all sidebar conferences that discuss jurors or juror issues.” This makes clear that: - Sidebar conferences discussing evidentiary issues must be transcribed and made available; - The only sidebars subject to impoundment are those related to jurors or juror issues; - The NDAO’s blanket denial of all sidebar transcripts is overbroad and not supported by the court’s order. . . . Accordingly, I respectfully request that your office: 1. Review whether the NDAO’s blanket denial violates G.L. c. 66, § 10; 2. Direct the NDAO to produce sidebar transcripts that are not explicitly impounded under the April 14, 2024 order[.] The Office’s August 6th Response In its August 6, 2025 response, the Office states that the records at issue are subject to an impoundment order and are the subjects of a pending motion before the Superior Court. The Office argues the following: On April 14, 2024, the Commonwealth’s motion in limine for appointment of court stenographer, ongoing order to impound all sidebar conferences, and impoundment of juror names during trial was allowed by agreement. See Commonwealth v. Karen Read, Docket No. 2282CR00117, Paper No. 291. On July 30, 2025, defendant Karen Read filed a motion entitled “Defendant Karen Read’s Motion for Relief from April 14, 2024, Order to Impound Sidebar Conferences.” See Commonwealth v. Karen Read, Docket No. 2282CR00117, Paper No. 730. While this motion remains pending before the court, the April 14,

Brandon P. Hunt, Esq. SPR25/2297 Page 3 August 20, 2025 2024, impoundment order stands and the records you seek are being withheld from public inspection. See George W. Prescott Publ. Co. v. Register of Probate for Norfolk County, 395 Mass. 274, 277 (1985) (a court has inherent authority to impound documents filed with it); Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 219-220 (2011) (public records law did not abrogate judicial protective order prohibiting disclosure of documents parties deemed confidential, and thus records requester was not automatically entitled to disclosure of records subject to the order); New England Internet Café, LLC v. Clerk of Superior Court, 462 Mass. 76, 83 (2012) (The presumption of publicity of a judicial record is not absolute and can be limited upon a demonstration of good cause). 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: 1. 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 Ms. Conway’s request, is active and ongoing in the Norfolk Superior Court. See Commonwealth v. Karen Read, (Norfolk Superior Court, Docket No. 2282- CR-00117) (Defendant Karen Read’s Motion for Relief from April 14, 2024, Order to Impound Sidebar Conferences) (July 30, 2025). In light of the pending matter, I decline to opine on this matter at this time. See 950 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: Nikki Conway