Goldberger, Ben v. Middlesex County District Attorney's Office (SPR 20260293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2026 SPR26/0293 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 Benjamin Goldberger appealing the response of the Middlesex District Attorney’s Officer (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 9, 2025, Mr. Goldberger requested: [1] Such documents as are sufficient to determine the number of homicide trials that went to trial in which [an identified individual] was the trial prosecutor on behalf of the Middlesex District Attorney’s Office while serving as District Attorney or as an Assistant District Attorney. [2] For each homicide case that went to trial in which [an identified individual] was the trial prosecutor on behalf of the Middlesex District Attorney’s Office while serving as District Attorney or as an Assistant District Attorney, the charging document, redacted if necessary. On December 27, 2025, Mr. Goldberger modified his request and submitted a second request for public records: Please supplement your response with a copy of the indictment from each homicide case [an identified individual] tried, redacted if necessary to show only the year of the indictment. … Additionally, please consider this an additional request for the following records: [1] [D]ata from the Damion Case Management System, anonymized consistently with the data available on your website … for each homicide charge for which [an identified individual] is listed as the prosecutor who appeared in court for a court 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. SPR26/0293 Page 2 February 9, 2026 event recorded as a jury trial[.] [2] [T]he indictment from each homicide case [an identified individual] tried, redacted if necessary to show only the year of the indictment[.] [3] If the office does not have responsive records to items 1 and 2, then please provide any record showing that [an identified individual] has served as a trial prosecutor in a homicide case. The Office responded on December 23, 2025, and assigned reference number #25-251 to the December 9th request. The Office provided an additional response on December 24, 2025. Unsatisfied with the Office’s responses, Mr. Goldberger petitioned this office and this appeal, SPR26/0293, 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 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 December 23rd and December 24th Responses In its December 23, 2025 response, the Office stated: In order to respond to your request we would need to have records identifying the trial prosecutor in every homicide during the period requested and whether the case was resolved by means of trial or plea. Our office does not have such records. Please be advised, however, that such information may be located by a search of the Massachusetts Trial Court Case Access System, accessible at [a specified

Meagan Horn, Esq. SPR26/0293 Page 3 February 9, 2026 hyperlink] or by contacting the Middlesex Superior Court clerk’s office…. In its December 24, 2025 response, the Office stated, “[t]hank you for agreeing to an extension of time for the MDAO to respond to your four outstanding public records requests, which were due this week and early next week. We will get those responses to you on or before Friday, January 9.” Current Appeal In his appeal petition, Mr. Goldberger contends: … This response violated the Public Records Act. Records Access Officers must provide responsive records, even if other agencies (or courts) may have copies of the same records, and even if the Records Access Officer or other agency employees must expend effort to search for responsive records. … In violation of the Public Records Act, the MDAO failed to respond to this request within ten business days and still has not responded to the December 27, 2025 request, despite a reminder from the undersigned requestor. The Supervisor should direct the MDAO to provide all documents responsive to the December 9, 2025 request (or clarify that no such documents exist because [an identified individual] has never tried a murder case) and direct the MDAO to respond to the December 27, 2025 request forthwith. No Duty to Create Records Please be advised that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Further, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 10(b)(iii). Regarding Mr. Goldberger’s December 9th request, where the Office stated that it “does not have such records[,]” and the Office has no duty to do research or create records, I find this portion of Mr. Goldberger’s appeal is resolved.

Meagan Horn, Esq. SPR26/0293 Page 4 February 9, 2026 Timeliness in Providing Records G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where Mr. Goldberger modified his request and submitted a second request on December 27, 2025, it is unclear why the Office has not provided the responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5); see also G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Office must provide responsive records on a rolling basis. Conclusion Accordingly, the Office is ordered to provide Mr. Goldberger with a response to the requests, 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. Mr. Goldberger may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Benjamin Goldberger