David Chritson v. Middlesex District Attorney's Office (SPR 20252434)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 2, 2025 SPR25/2434 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 [a named individual].” I understand the Office assigned reference number 24-230 to this request. Previous Appeals This request was the subject of previous appeals. See SPR25/0651 Determination of the Supervisor of Records (March 11, 2025); SPR25/1136 Determination of the Supervisor of Records (May 8, 2025) and SPR25/1479 Determination of the Supervisor of Records (June 6, 2025). In my June 6th determination, I ordered the Office to clarify its claims under Exemption (d) of the Public Records law for withholding responsive records. Subsequently, the Office responded on June 24, 2025. Unsatisfied with the Office’s response, Mr. Chritson petitioned this office and this appeal, SPR25/2434, 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. SPR25/2434 Page 2 September 2, 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. Current Appeal In his appeal petition, Mr. Chritson contends that “the Middlesex District Attorney’s Office, has failed to comply with all 3 orders of the Supervisor and continues to withhold 10 emails in their entirety—including dates, senders, subject lines, etc.” He goes on to argues that the Office “has provided no verifiable evidence that the information withheld in their entirety are exempt under the Public Records Law.” The Office’s June 24th Response In its June 24, 2025 response, the Office states that it is withholding ten emails pursuant to Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). 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).

Meagan Horn, Esq. SPR25/2434 Page 3 September 2, 2025 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. In its June 24th response, under Exemption (d), the Office argues the following: The ten emails identified as responsive to your request are exempt from disclosure under exemption (d) (deliberative process) of the Public Records Law. G.L. c. 4, § 7(26)(d) (exempting from disclosure “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency”). See DaRosa v. City of New Bedford, 471 Mass. 446, 450 (2015). These emails were exchanged between members of this Office and members of the Somerville Police Department and other City of Somerville staff in determining whether criminal charges may be filed. The confidentiality of this process is crucial to its operation. See id. at 456, (“It was argued, and with merit, that efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to ‘operate in a fishbowl.’”), quoting Environmental Protection Agency v. Mink, 410 U.S. 73, 87 (1973). Because there are no segregable non-exempt portions, the emails cannot be provided. In Camera Inspection In order to facilitate a determination as to the applicability of the Exemption (d) claim made by the Office to withhold responsive records, the Office must provide this office with un- redacted copies of the responsive records for in camera inspection. See G. L. c. 66, § 10A(a); 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Office’s custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Mass. Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c).

Meagan Horn, Esq. SPR25/2434 Page 4 September 2, 2025 This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Office is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: David Chritson