Tiwari, Chetan v. Worcester, City of - Office of the District Attorney (SPR 20260661)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 11, 2026 SPR26/0661 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Attorney Chetan Tiwari appealing the response of the Worcester 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 February 6, 2026, Attorney Tiwari requested the following: 1) Any and all police reports, evidence inventories, and photographs concerning the investigation into the murder of [a named individual]. 2) Any reports, documents and communications, between January 1, 1990 through the present pertaining to the following individuals: [a list of six named individuals] 3) Copies of any and all identification training manuals, policies and procedures that were in effect at the Worcester Police Department (“WPD”) at the time of the investigation; 4) Copies of any and all photo arrays used by the WPD in the course of their investigation of this case; 5) Any and all audio or video recordings of witness statements obtained in the course of this investigation; 6) And any and all reports, records, or notes not reduced to writing that contain witness statements related to the Boston Police Department’s investigation of this incident; 7) Any and all documents and communications with or pertaining to, from December 9, 1994 until January 31, 1999: [a list of seven named individuals.] The Office responded on February 11, 2026. Unsatisfied with the Office’s response, Attorney Tiwari petitioned this office, and this appeal, SPR25/0661, was opened as a result. 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

Mark Relation, Esq. SPR26/0661 Page 2 March 11, 2026 Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Tiwari’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 February 11th Response In its February 11, 2026 response, the Office indicates that it is withholding responsive records pursuant to the Massachusetts Rules of Criminal Procedure 30(c)(4), as it operates through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a).

Mark Relation, Esq. SPR26/0661 Page 3 March 11, 2026 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public’s right to inspect records under the Public Records Law is restricted. See Att’y Gen. v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either “shall not be a public record,” “shall be kept confidential” or “shall not be subject to the disclosure provision of the Public Records Law.” The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Massachusetts Rules of Criminal Procedure - Post Conviction Relief In its response, the Office cites the Massachusetts Rules of Criminal Procedure, which provide in pertinent part as follows: Post Conviction Procedure. . . . Discovery. Where affidavits filed by the moving party under subdivision (c)(3) establish a prima facie case for relief, the judge on motion of any party, after notice to the opposing party and an opportunity to be heard, may authorize such discovery as is deemed appropriate, subject to appropriate protective order. Mass. R. Crim. P. 30(c)(4). In its February 11th response, the Office argues the following: The District Attorney’s Office is unable to provide the requested documents at this time as public records. Your request seeks to obtain post-conviction discovery “to determine if there is a basis for postconviction relief.” Post-conviction discovery is governed by Mass. R. Crim. P. 30(c)(4). The public records law cannot be used to circumvent this rule because “discovery should follow normal procedures in criminal cases where its availability lies in the discretion of the trial judge under standards developed” by the Supreme Judicial Court. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). See G.L. c. 4, § 7(26)(a). Based on the Office’s response, it is unclear how the above cited Rule permits the Office to withhold the requested records from disclosure. Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure

Mark Relation, Esq. SPR26/0661 Page 4 March 11, 2026 under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Office cites Mass. R. Crim. P. 30(c)(4), it is unclear how the Rule specifically or by necessary implication permits the Office to withhold the requested records from disclosure. Additionally, it is unclear from the Office’s response, which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold. See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). It is further uncertain why the records must be withheld in their entirety. The Office must explain whether the records can be redacted so that segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). Conclusion Accordingly, the Office is ordered to provide Attorney Tiwari 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. Attorney Tiwari may further appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Chetan Tiwari, Esq.