Morth, Esq., Karen v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20140596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 12, 2015 SPR14/596 Mr. Patrick K. Devlin, Esq. Assistant Attorney General Criminal Bureau, Enterprise & Major Crimes Division Office of the Attorney General One Ashburton Place - 19th Floor Boston, MA 021 08 Dear AAG Devlin: I have received the petition of Karen Morth, Esq. appealing the response of the Office of the Attorney General (AGO) to her request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Morth requested "copies or photographs of all documents and physical evidence related to" a former Massachusetts chemist. In its response the AGO found that there are no records responsive to five items from Attorney Marth's itemized request. For the remaining items the AGO denied Attorney Marth's request, citing the investigatory exemption to the Public Records Law as well as the Criminal Offender Record Information Act as it operates under the statutory exemption. G. L. c. 4, § 7 (26) (a), (f); G. L. c. 6, §§ 167, 172. In your letter, you indicate the intent of the AGO to withhold the records pursuant to Exemption (a) of the Public Records Law. 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 Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Patrick K. Devlin, Esq. SPR14/596 Page Two February 12,2015 Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that permits the AGO to withhold certain records pursuant to Exemption (a) is the Criminal Offender Record Information (CORI) Act G. L. c. 6, § 167. CORI, which is statutorily exempt from disclosure, is defined as: [A] ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. c. 6, § 167 I find that the records withheld by the AGO do consist of CORI, and relate to a specifically identified individual and therefore may not be redacted to protect the identity of the accused, who is specifically identified by Attorney Morth in her request. Accordingly, I decline to opine upon the AGO's claim that the records are exempt pursuant to Exemption (f) of the Public Records Law. It is important to note that the personal status of Attorney Morth's current or future clients provides no greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Attorney Morth's status as "an attorney duly licensed in the Commonwealth of Massachusetts" who has "been assigned to represent clients who have been imprisoned as a result of convictions based upon laboratory certificates signed by [a] former Massachusetts Department of Public Health analyst" has no bearing upon the public status of the governmental records. The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for

Mr. Patrick K. Devlin, Esq. SPR14/596 Page Three February 12, 2015 Attorney Morth to seek access to responsive records through the ju cial process. This administrative appeal is now closed. Supervisor of Records cc: Ms. Karen Morth, Esq.