Wallack, Todd v. Office of the District Attorney - Worcester District (SPR 20150558)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords August 13, 2015 SPR15/185, 15/189, 15/190, 15/191, 15/195, 15/196, 15/229, 15/285, 15/317, 15/558 Mr. Todd Wallack The Boston Globe P.O. Box 55819 Boston, MA 02205 Dear Mr. Wallack: I have received your petitions appealing the responses of the Offices of the District Attorney in the Northwestern District (SPR15/185), Hampden County (SPR15/189), Norfolk County (SPR15/190}, Plymouth County (SPR15/191), Berkshire County (SPR15/195), Cape and Islands (SPR15/196), Bristol County (SPR15/229), Middlesex County (SPR15/285), Suffolk County (SPR15/317) and Worcester County (SPR15/558) each referred to in this order as DAO, to your January 6, 2015 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Whereas the requests and responses are substantially similar, I have combined the appeals into one administrative order. Specifically, you requested "a copy of the data contained within the computer system your office uses to track criminal court cases, including all the rows, columns (also known as fields), and column titles (also called field names or headers) within those data tables for all years that are available in your current computer system. I ask that you provide the data in a standard electronic format, such as ASCII delimited text files, via FTP, email or on a standard electronic media (such as a CD-ROM or thumb drive)." The columns requested include: Case ID Number (used by the computer system to link different tables together) Offense Date Case filing Date Docket number Court name where the case was handled Criminal count number Charge/crime Code (Ex: c266 s 1) Charge/crime Description (Ex: Arson of dwelling house) Charge/crime Type (Ex: Arson) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 151195, Page Two 15/196, 15/229, 15/285, 15/317, 15/558 August 13, 2015 Department that filed the charge Way charge was initiated (Ex: grand jury indictment, filed by police ... etc.) Defendant ID (Internal tracking number used by DA's office to identify defendant) Defendant Race/Ethnicity Defendant Gender Judge's Name who handled disposition Disposition Date Disposition Code Disposition Description Disposition Type Disposition/sentenced recommended by prosecutor for each charge Sentence Type Sentence Description Case status The term "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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Disclosure of governmental records is favored by the presumption that the record sought is public. G. L. c. 66, § lO(c); 950 C.M.R. 32.08(4). See The Harvard Crimson, Inc. v. President & Fellows of Harvard College; Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 436 (1983). Responses to your requests You received separate written responses from each DAO, citing several factors that led to their decisions. This office reached out to each DAO, along with the Massachusetts District Attorneys Association (Association), to discuss your request and their respective responses. I would like to thank each DAO and the Association for their cooperation. A member of my staff also discussed these appeals with you on August 12, 2015. It should be noted that the Office of the Attorney General (AGO) provided you with a satisfactory response to a similar request for information contained in its database. See SPR15/186 Determination ofthe Supervisor of Records (July 17, 2015). The DAM/ON Case Management System Several DAOs provided explanation to this office regarding the DAMION case management system, the database utilized to store the case management data for each DAO. It is my understanding that each of the DAOs uses the database differently than the others, further there is a variation in the reporting tools used to extract information from the system. In other words, while the request is very specific, the data fields requested are not universal; each DAO uses its own data fields that may or may not mirror those identified in your request.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 15/195, Page Three 15/196, 15/229, 15/285, 15/317, 15/558 August 13, 2015 I also understand that there are complications with respect to the extraction of certain information that is exempt from disclosure under the Public Records Law, including juvenile offenders, sexual assault victims, and cases that have been sealed. With regard to sealing, this office was informed that certain sealed cases would not be reflected in DAMION and would no longer be available in a court record. In addition, cases sealed more than five years ago may not be reflected in the DAMION system as sealed, as this information is not routinely reported back to each DAO by the courts. See G.L. c. 276, § 1O OA. I have been informed that the DAOs and the Association are seeking to update the case management system, and are actively engaged in pursuing this endeavor. It is believed that an update would alleviate many of the issues that are related to the varied responses by each DAO to your request in the future. Creation of a record versus a query search within an existing record In their responses, several DAOs stated that each has no record that is responsive to your request, and therefore responding to your request would require creation of a record. Some of the DAOs cite a provision in the Public Records Law to support their proposition that a response to this request requires creation. However, this office finds that they have misconstrued the language in the Public Records Law. While the Public Records Law states that a custodian of records is not required to create a record in response to a public records request, there is a fundamental difference between creation of a whole new record and conducting a query search of data within an existing record or database. The DAOs utilize the DAMION case management system to some extent to track criminal case information. Each piece of data contained in this system is a record that existed at the time of your request and therefore may be searched to extract responsive records. Accordingly, whereas the data already exists within a record contained within the DAMION case management system, I find the DAOs are not creating a new record within the meaning of the Public Records Law. See Globe Newspaper v. Conte, 2001 Mass. Super. LEXIS 328, at *30-31 (Sup. Ct. July 19, 2001). Claim that request is broad, response will be time consuming and costly Several DAOs claim that due to the magnitude of your request their offices cannot provide you with a copy of the data because to do so "would require an enormous amount of stafftime and huge expenditure of resources." See (March 18, 2015 response ofthe Northwestern DAO, Page 3). A review of the initial written responses from the DAO for Hampden County, Norfolk County, Plymouth County, Berkshire County, Cape and Islands and Bristol County reveals that they have similarly worded responses.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 15/195, Page Four 15/196, 15/229, 15/285, 15/317, 15/558 August 13, 2015 It is my understanding that several DAOs believe that pursuant to Chapter 12 ofthe General Laws their offices may only incur costs and expend funds for the limited purposes of investigating and prosecuting criminal cases. On the contrary, while each DAO's primary function is investigating and prosecuting criminal cases, as a Massachusetts government entity, their offices are not exempt from the mandatory obligations imposed by the Public Records Law and its Access Regulations (Regulations). See 950 C.M.R. 32.00. By statute, every government entity, with limited exceptions not relevant to this appeal, is subject to the Public Records Law, and must receive and respond to public records requests, regardless of the costs, time, and broad nature of the request. See 950 C.M.R. 32.03 (definition of government entity). The custodian of records may charge a fee for complying with a public records request, however those fees must be reasonable and in compliance with the Regulations. See 950 C.M.R. 32.08. Therefore, I find that the DAOs must provide responsive records, and if assessing fees for those records, must provide a written, good faith estimate in compliance with the Regulations. Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § 10(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Absent specific statutory authority to the contrary, the fees to be charged for complying with requests for public records are established by the Public Records Access Regulations (Regulations). See 950 C.M.R. 32.06 (fees for public records). Under the Regulations, a custodian of records may assess a maximum fee of twenty cents ($.20) per page for a photocopy of a public record and fifty cents ($.50) per page for a computer printout of a public record. See 950 C.M.R. 32.06(1)(a). In addition to the copying fee, the Regulations provide that in cases where search or segregation time is necessary a custodian of records may charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(c). The Regulations define "search time" as the time needed to locate, pull from the file, copy and refile public records, and "segregation time" as the time used to redact data that is exempt from non-exempt material. 950 C.M.R. 32.03. The search and segregation fees must reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). Accordingly, I find each DAO is permitted to assess a fee for provision of records responsive to this request. Further, I find that each DAO may require that payment for records be made in full in advance of the search and segregation of responsive records.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 15/195, Page Five 15/196,15/229,15/285,15/317,15/558 August 13,2015 Criminal Offender Record Information (COR!) Act Several DAOs have stated that portions of the requested data are exempt from disclosure as CORI, in particular the Case ID Number and Defendant's ID Number. This office is aware that some public records contain CORI information that is commingled with non-exempt information. However, the Public Records Law requires that the custodian of records redact any exempt information or data and provide the balance of the record. I find that the DAOs have offered no support for their contention that the Case ID and Defendant ID numbers are CORI. Accordingly, the DAOs have failed to overcome the presumption that case ID Numbers or Defendant ID Numbers are public records. Responses provided subsequent to the opening of administrative appeals Several DAOs provided additional information and supplemental responses in light of conversations with this office and I will discuss each response below. Northwestern District Attorney In a letter dated August 10, 2015, on which you were copied, the Northwestern DAO states the "IT Director is planning to produce the information in one or more formatted reports or ASCII delimited tables." The DAO also provided a fee estimate in the amount of$738.00. To justify this fee, the DAO states "[a] total of twenty hours of time is an estimate to begin to generate the requested data in table form. At a rate of $36.90 per hour, an initial charge of $738 is warranted before the search and production of data can be undertaken." In a subsequent conversation with this office, the DAO indicated this hourly rate is that of the IT Director and explained how this is the lowest paid person capable for performing the task. The DAO also clarified that the twenty hours referenced is for search and segregation time and not merely for preparing to begin providing the records. As a result, I find the Northwestern DAO provided a good faith estimate in compliance with the Public Records Law and its Regulations. Norfolk County District Attorney In a letter dated August 12, 2015, of which a copy was provided to you, the Norfolk County DAO maintains that it would be required to create a record to respond to your request. The DAO does, however, offer to provide data from certain fields "to the extent such information appears in the system." The DAO provides a fee estimate of $800.00 and states it will take 25 hours to prepare and review these records. Berkshire County District Attorney In an email dated August 7, 2015, a copy of which was forwarded to you, the Berkshire County DAO indicates it intends to provide you with a modified response which would provide you the information in a digital format.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 15/195, Page Six 15/196, 15/229, 15/285, 15/317, 15/558 August 13, 2 0 15 Bristol County District Attorney In an email dated August 6, 2015, a copy ofwhich was forwarded to you, the Bristol County DAO provided a chronology of correspondence between you and the DAO. As the DAO explains, you were provided with limited data field information from the DAMION case management system that you requested on March 30,2015. This request was the subject of a previous appeal with this office. See SPR15/429 Determination ofthe Supervisor ofRecords (July 3, 2015). You indicated to a member of my staff that you are seeking any additional data fields from the original request. In the August 6 email, the DAO claims the additional data fields require redactions. The DAO states the process of redacting domestic violence victim-related information, sealed records, and CORI information requires the creation of a new record because the DAO would be required to identify the cases that fall within each category. Middlesex County District Attorney In an email dated August 5, 2015, the Middlesex County DAO explained that you were provided some responsive records on June 4, 2015 in .pdf format and additional records were provided as a delimited ASCII text file on June 18, 2015. The DAO initially provided you with a written estimate for the costs of searching for and segregating the twenty-three (23) fields of data in the database from January 1, 2002 through the date of request. You paid the amount of $543.46, but appealed the fee estimate and have questioned how the DAO arrived at the costs of the estimate. In the August 5 email, the DAO confirms the estimate was based on the hourly rate ($27.00) of the lowest paid employee capable of performing the task and states the DAO did not charge you for any other employee that helped provide the records, in effect waiving that portion of the estimated fee. Further, the DAO explained that the provision of the records amounted to an actual time of twenty hours. As a result, I find the Middlesex County DAO provided a good faith estimate in compliance with the Public Records Law and its Regulations. In correspondence dated July 7, 2015, you appealed the DAO's withholding of a column in the database containing sentencing information. You objected to the DAO's contention that "in terms of sentencing, the system of record for that information is maintained by the trial court." With respect to this column, the DAO states that while the database has some sentencing information, it is not consistently entered for each case "because the system of record for that infonnation is maintained by the trial court." Nevertheless, the DAO indicated it will run a separate query that will include three excluded categories. Whereas the DAO is conducting an additional search for the sentencing information, I will consider this portion of your appeal closed.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 15/195, Page Seven 15/196, 15/229, 15/285, 15/317, 15/558 August 13, 2015 Suffolk County District Attorney The Suffolk County DAO initially provided a fee estimate of $1,625.00 for the provision of records and stated the provision of records would require the creation of a new record. The DAO explained this amount was based on "the cost of one week's salary for the lowest paid employee who is qualified to do the programming necessary to satisfy your request." In recent discussions with this office, the DAO maintains its position regarding the $1,625.00 fee estimate as well as its position regarding the creation of a new record. Worcester County District Attorney The Worcester County DAO provided a letter to this office dated June 19, 2015 in response to a previous appeal with this office. See SPR15/151 Determination of the Supervisor of Records (May 18, 2015). This letter, on which you were copied, which claims the responsive database is a "secure litigation management database." In addition, the DAO claims the information in the database is exempt from disclosure under the attorney-client privilege as well as Exemption (a) of the Public Records Law. The DAO also claims providing the responsive records would require the creation of a new record. Orders With respect to any order below, if a DAO maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide a written explanation, with spec?ficity, how a particular exemption applies to each record. 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 any DAO plans to charge fees for the cost of providing the requested record (data), it must produce a written, good faith estimate that is prepared in compliance with this determination and the Public Records Law. See 950 C.M.R. 32.08. A copy of any written response or estimate must also be provided to this office at pre@sec.state.ma.us. Hampden County, Plymouth County, and Cape and Islands I find that the Offices of the District Attorney in Hampden County, Plymouth County, and the Cape and Islands have failed to overcome the presumption that the records requested on January 6, 2015 are public records. The DAOs in these counties are hereby ordered to conduct a query search within the DAMION case management system for the requested data fields and provide a revised written response within ten (10) days.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 151191, 15/195, Page Eight 15/196, 15/229, 15/285,15/317, 15/558 August 13, 2015 Berkshire County The Berkshire County DAO is hereby ordered to conduct a query search within the DAMION case management for responsive data and provide a written response within ten (10) days. Bristol County The Bristol County DAO has failed to establish that providing the rest of the responsive records, or redacting any such records, would require the creation of a record. As such, the DAO is hereby ordered to provide any remaining data within the DAMION case management system within ten (1 0) days. Norfolk County The Norfolk County DAO has failed to meet its burden of providing further details concerning the written estimate in which it lacks confirmation that it intends to the use the lowest paid employee who is capable of performing the task of search and segregation. Further, with regard to the twenty five hours oftime referenced, the DAO has not justified why it would take this amount of time, nor has it established how this time is either search or segregation as permitted in the Regulations. See 950 CMR 32.03. Accordingly, the Norfolk County DAO is hereby ordered to provide a revised estimate containing the detail required by the Regulations to support its $800.00 estimate within ten (1 0) days. Suffolk County The Suffolk County DAO has failed to meet its burden of providing further details concerning the written, good faith estimate because no detail was provided to explain why it would take a week to produce the information. Accordingly, the DAO is hereby ordered to provide the detail required by the Regulations to support its $1,625.00 estimate within ten (10) days.

Mr. Todd Wallack SPR15/185, 15/189, 15/190, 15/191, 15/195, Page Nine 15/196, 15/229, 15/285, 15/317, 15/558 August 13, 2015 Worcester County The Worcester County DAO has failed to meet its burden to show the contents of its DAMION case management system is exempt from disclosure 'nits entirety. It is hereby ordered to conduct a query search within the DAMION case m agement system for responsive data and provide a response within ten (1 0) days. cc: District Attorneys in the Northwestern District, Hampden County, Norfolk County, Plymouth County, Berkshire County, Cape and Islands District, Bristol County, Middlesex County, Suffolk County, and Worcester County