Debra Silveira v. Suffolk County District Attorney's Office (SPR 20253366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 1, 2025 SPR25/3366 Jacob Gunderson Public Records Team Member Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Mr. Gunderson: I have received the petition of Debra Silveira appealing the response of the Suffolk County 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 April 10, 2025, Ms. Silveira requested, “[a]ll clerk magistrate show cause hearing recordings, arrest warrants, any and all documentation related to rendition or extradition for those warrants, any and all communications with other agencies regarding the defendant or specified cases for [an identified case] docket numbers 2404CR000424, 2404CR000423.” The Office provided a response on October 16, 2025, October 23, 2025 and November 13, 2025. Unsatisfied with the Office’s responses, Ms. Silveira petitioned this office and this appeal, SPR25/3366, 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 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 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

Jonathan Gunderson SPR25/3366 Page 2 December 1, 2025 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 her appeal, Ms. Silveira states, “I appeal the Suffolk county DA's office decision regarding my public records request that I paid for and money's withdrawn from my account.” The Office’s October 16th, October 23rd and November 13th Responses In its October 16, 2025 response, the Office stated, “... we are currently unable to provide any materials related to your request. For requests involving email pulls, we are unable to divide the materials and send them separately. Your request consists of a document totaling approximately 4,600 pages of emails, along with around 1,000 additional pages in attachments. Furthermore, due to the nature of the case and its close connection to a case with open and ongoing litigation - specifically, Commonwealth v. David Hughes - the production is currently being reviewed by attorney staff. Due to the size of the request and our additional public records obligations, reviewing these documents will take time.” In its October 23, 2025 response, the Office cited Exemption (f) of the Public Records Law to withhold the requested records. In its November 13, 2025 response, the Office offered to provide a refund of the monies paid and withhold requested records. The Office further stated, We received your follow-up to our denial of your public records request after you had made the payment. As stated in our October 23, 2025, correspondence, the nature of and irrefutable connection between the two cases in question, Commonwealth v. Bergeron and Commonwealth v. Hughes, severely limit this Office’s ability to disseminate the email correspondence publicly. Additionally, due to the large amount of requested correspondence (more than 5,000 pages), the Office was unable to determine the full extent of the implications that producing the material from Bergeron would have on prosecution in the ongoing Hughes matter. This Office is prepared to reimburse you for your payment for these records. Currently, we have a check prepared, made out to . . . In your response, please confirm whether this is the correct name and address to which the reimbursement should be sent.

Jonathan Gunderson SPR25/3366 Page 3 December 1, 2025 Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third

Jonathan Gunderson SPR25/3366 Page 4 December 1, 2025 category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requester; and information voluntarily provided by an individual or entity to aid in the investigation. In its October 13th response, the Department asserted: Our Public Records team recently completed an initial version of the email production, and the documents were sent to Assistant District Attorneys for review. However, upon review, it has come to the Office’s attention that despite the closed status of Commonwealth v. Charles Bergeron, there is an open case with almost identical evidence, Commonwealth v. David Hughes. Thus, it is this Office’s position that the public production of communication records in connection with the Bergeron case is not in the public interest, as it could jeopardize active and ongoing investigative and prosecutorial efforts in the Hughes case. General Laws c. 4, § 7 cl. 26(f), provides a basis for withholding documents where the “disclosure ... would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest”. Public dissemination of emails between law enforcement discussing matters related to Bergeron would severely compromise the Hughes case, as the circumstances and facts surrounding the incident that gave rise to the charges are almost identical. As a practical matter, it is impossible to legally separate the two cases since every communication in one case may be relevant to the other, regardless of subject lines or names mentioned. Where production cannot be made at this time, the Office will reimburse you for the$250.00 charge. In response, please send a physical address where we can send the check. Although the Office states in its October 13th response that it has an active and ongoing investigation regarding the requested records, it remains unclear how the records, in their entirety, can be withheld under Exemption (f). It is additionally unclear from the Office’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Office also did not demonstrate how disclosure of any segregable portion of the responsive records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). Reinstein, 378 Mass. 289-290 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). I encourage Ms. Silveira and the Office to communicate in order to facilitate producing records efficiently and affordably. Ms. Silveira may wish to narrow the parameters or include applicable time periods or factors to enable the search to be processed. G. L. c. 66, § l0(a)(i). The

Jonathan Gunderson SPR25/3366 Page 5 December 1, 2025 Office must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § l0(a)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably). Conclusion Accordingly, the Office is ordered to provide Ms. Silveira 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. Ms. Silveira may appeal the substantive nature of the Office’s response within 90 days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Debra Silveira