Goldberger, Ben v. Middlesex County District Attorney's Office (SPR 20260299)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 9, 2026 SPR26/0299 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 Ben Goldberger 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 10, 2025, Mr. Goldberger requested: [1] Copies of all email communications (internal, external or mixed) in which an assistant district attorney or the district attorney used the term “ACC policy,” or used the terms “ACC*” (where * corresponds to 0 or more characters or numerals in the same word) and “policy” within 15 words of each other, or the terms “armed career criminal” and “policy” within 15 words of each other, during the period from January 1, 2015 to the present. [2] Copies of all email communications (internal, external or mixed), for the period January 1, 2015 to the present, directing or instructing an Assistant District Attorney not to employ the Armed Career Criminal Act (G. L. c. 269, § 10G) with respect to a particular defendant, class of defendants or all defendants. [3] Copies of all email communications (internal, external or mixed) in which an assistant district attorney or the district attorney used the term “habitual policy,” or used the terms “habitual” and “policy” within 15 words of each other, during the period from January 1, 2021 to the present. [4] Copies of all email communications (internal, external or mixed), for the period January 1, 2021 to the present, directing or instructing an Assistant District Attorney not to employ the Habitual Criminal statute (G. L. c. 279, § 25) with respect to a particular defendant, class of defendants or all defendants. 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. SPR26/0299 Page 2 February 9, 2026 The Office responded on January 8, 2026. Unsatisfied with the Office’s response, Mr. Goldberger petitioned this office and this appeal, SPR26/0299, 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 January 8th Response In its January 8, 2026, response, the Office provided “documents that are responsive to [the] request and not exempt from disclosure,” noting, “[i]nformation within these documents… including Criminal Offender Record Information and names of witnesses, has been redacted pursuant to exemptions (a) (statutory), (c) (privacy) and (f) (investigatory) of the Public Records Law.” The Office also stated, “[a]dditional documents have been withheld because they consist of attorney-client privileged material and work product… Some of the emails have been withheld because they pertain to grand jury proceedings and are thereby exempt from disclosure.” Current Appeal In his appeal petition, Mr. Goldberger stated, “[i]n response to the public records request, the Middlesex District Attorney’s Office (the “MDAO”) refused to provide certain records based on the attorney client privilege… but the MDAO has not provided a privilege log or responded to follow-up communications.” It appears Mr. Goldberger’s appeal pertains only to the Office’s withholding of records pursuant to the attorney-client privilege.

Meagan Horn, Esq. SPR26/0299 Page 3 February 9, 2026 Common Law Attorney-Client Privilege A records custodian claiming the attorney-client privilege under the Public Records Law has the burden of not only proving the existence of an attorney-client relationship, but also (1) that the communications were received from a client during the course of the client's search for legal advice from the attorney in his or her capacity as such; (2) that the communications were made in confidence; and (3) that the privilege as to these communications has not been waived. See Suffolk Constr. Co. v. Div. of Capital Asset Mgmt., 449 Mass, 450 n.9 (2007); see also Hanover Ins. Co. v. Rapa & Jepsen Ins. Servs., 449 Mass. 609, 619 (2007) (stating that the party seeking the attorney-client privilege has the burden to show the privilege applies). Records custodians seeking to invoke the common law attorney-client privilege “are required to produce detailed indices to support their claims of privilege.” Suffolk, 449 Mass. at 460. Pursuant to the Public Records Law, in assessing whether a records custodian has properly withheld records based on the claim of attorney-client privilege the Supervisor of Records “shall require, as part of the decision making process, that the agency or municipality provide a detailed description of the record, including the names of the author and recipients, the date, the substance of such record, and the grounds upon which the attorney-client privilege is being claimed.” G. L. c. 66, § 10A(a). Based on the Office’s response, the Office has not demonstrated how the additional responsive records may be withheld under the attorney-client privilege. The Office must provide a detailed description of the communications withheld under the attorney-client privilege, including the names of the author and recipients, the date, the substance of such withheld communications, and the grounds upon which the attorney-client privilege is being claimed in accordance with G. L. c. 66, § 10A(a). The Office must also clarify whether all of the communications withheld under the attorney-client privilege were between a client and an attorney during the course of the client’s search for legal advice from the attorney in his or her capacity as such. Further, the Office must provide information regarding whether the communications were made in confidence and demonstrate that the privilege has not been waived. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Goldberger 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. Mr. Goldberger may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Meagan Horn, Esq. SPR26/0299 Page 4 February 9, 2026 Sincerely, Manza Arthur Supervisor of Records cc: Ben Goldberger