Revells, Paul v. Berkshire District Attorney's Office (SPR 20261265)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2026 SPR26/1265 Joseph A. Pieropan, Esq. Records Access Officer Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Pieropan: I have received the petition of Paul Revells appealing the response of the Berkshire 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 9, 2026, Mr. Revells requested “[m]y previous conviction files the Doc #930301.” The Office responded on March 2, 2026. Unsatisfied with the Office’s response, Mr. Revells petitioned this office and this appeal, SPR26/1265, was opened as a result. The Office provided a supplemental response on April 8, 2026. 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. 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

Joseph A. Pieropan, Esq. SPR26/1265 Page 2 April 22, 2026 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. 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Revells’ status shall have no bearing on the public status of any existing responsive records. Current Appeal In his appeal petition, Mr. Revells contends, “I understand that they can’t release the information to the public because of Rape Shield Laws, but at the same time I am the defendant in these two cases, and I have a right to the files so I can challenge the convictions.” The Office’s March 2nd Response On March 2, 2026, the Office cited G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law, to withhold the “Berkshire Superior Court Indictment No. 93- 0301 (9376CR0301)” in its entirety. 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). 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, 545-546 (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.”

Joseph A. Pieropan, Esq. SPR26/1265 Page 3 April 22, 2026 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. In its response, the Office cited G. L. c. 41, § 97D, which provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police Offices in a manner that shall assure their confidentiality; provided, however, that all such reports shall be accessible at all reasonable times, upon written request, to: (i) the victim, the victim’s attorney, others specifically authorized by the victim to obtain such information, prosecutors and (ii) victim-witness advocates as defined in section 1 of chapter 258B, domestic violence victims’ counselors as defined in section 20K of chapter 233, sexual assault counselors as defined in section 20J of chapter 233, if such access is necessary in the performance of their duties… G. L. c. 41, § 97D. In its April 8th supplemental response to this office, the Office argued the following: The District Attorney also relies upon the clear holding of the Supreme Judicial Court in Montefusco v Commonwealth, 452 Mass. 1015 (2008), wherein the defendant, who had been convicted of rape, sought “production” of [the district attorney’s case] file and certain discovery” to pursue a motion for a new trial. The Court held that there was ‘no obligation of the district attorney to produce the documents pursuant to the public records law, G. L. c. 66 § 10, as Montefusco sought to have him do, because materials relating to an allegation of sexual assault are exempt from the law. See G. L. c. 41, § 97D; G. L. c. 265, §24C.’ Id. at 1016. See also Commonwealth v. George W. Prescott Publ’g Co., LLC, 463 Mass. 258, 268 n.12 (2012) (affirming the holding of Montefusco and noting that the petitioner’s request to obtain from the District Court an impounded search warrant affidavit related to an investigation of sexual assault ‘[did] not involve a request under the public records law’). Although certain information may fall under Exemption (a), it is not clear how the record can be withheld in its entirety. The City must clarify whether 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).

Joseph A. Pieropan, Esq. SPR26/1265 Page 4 April 22, 2026 Further, based on the Office’s response, it is unclear what type of records it possesses that it withheld from disclosure. G. L. c. 66, § 10(b)(iv) (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 . . .”). Therefore, the Office must identify the records it has in its possession that it is withholding under Exemption (a) of the Public Records Law. Conclusion Accordingly, the Office is ordered to provide Mr. Revells with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 business days. A copy of the 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. Revells may 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: Paul Revells