Dembitzer, Esq., Elizabeth v. Office of the Attorney General - Non-Profit Organizations/Public Charities Division (SPR 20150036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 31, 2015 SPRlS/036 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 02108 Dear Assistant Attorney General Devlin: I have received the petition of Elizabeth Dembitzer, Esq. appealing the response ofthe 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). Attorney Dembitzer requested copies of records held by the AGO, concerning a former Massachusetts chemist specifically, "[a]lllabels and writings on all plastic bags obtained pursuant to search warrant docket number 1398SW002, including but not limited to items 7, 8, 9, 10, 11 on the attached search warrant return and the writing on the box of baking soda listed on line 3." In its response the AGO denied Attorney Dembitzer's request, citing the investigatory exemption to the Public Records Law to withhold the responsive records held by the AGO and used at the Grand Jury, as well as the Criminal Offender Record Information Act (CORI Act) as it operates under the statutory exemption. G. L. c. 4, § 7(26)(a), (f); G.L. c. 6, §§167, 172. The AGO also identified the citation of other statutes, failing to further identify or explain the applicability to any responsive records. Exemption (a)- COR! Act In your letter, you indicated the intent of the AGO to withhold the records pursuant to Exemption (a) of the Public Records Law, 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) 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. SPR15/036 Page Two March 31, 2015 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 ofLynn, 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. 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. Therefore, the records may not be redacted to protect the identity of the accused because the identity ofthis individual is known to Attorney Dembitzer through her access to other records obtained previous to this records request. I decline to opine upon the AGO's claim that the records are exempt pursuant to Exemption (f) of the Public Records Law, or the other statutory claims. It is important to note that the personal status of Attorney Dembitzer' 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 Dembitzer'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 ofthe governmental records.

Mr. Patrick K. Devlin, Esq. SPR15/036 Page Three March 31, 2015 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). cc: Ms. Elizabeth Dembitzer, Esq. Ms. Lorraine A. G. Tarrow, Esq.