Wallack, Todd v. Office of the District Attorney - Bristol District (SPR 20150721)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 31, 2015 SPR15/185, 15/285, 15/558, 15/638, 15/674, 15/717, 15/718, 15/720, 15/721, 15/722, 15/723, 15/724 Mr. Todd Wallack The Boston Globe P.O. Box 55819 Boston, MA 02205 Dear Mr. Wallack: I have received your petitions regarding the responses of the Offices of the District Attorney in the Northwestern District (SPR15/185), Middlesex County (SPR15/285 and 15/638), Worcester County (SPR15/558), Essex County (SPR15/674), Norfolk County (SPR15/717), Berkshire County (SPR15/718), Suffolk County (SPR15/720), Bristol County (SPR15/721), Cape and Islands (SPR15/722), Plymouth County (SPR15/723), Hampden County (SPR15/724) each referred to in this order as DAO, to your January 6, 2015 request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). This request was the subject of previous appeals. See SPR15/185, 15/189, 15/190, 15/191, 15/195, 15/196, 15/229, 15/285, 15/317, 15/558 Determination ofthe Supervisor of Records (August 13, 2015). In the August 13 determination, I found both the Northwestern DAO and Middlesex DAO provided good faith fee estimates in compliance with the Public Records Law. You have sought reconsideration of my findings with regard to the Middlesex DAO and Northwestern DAO. I ordered the remaining DAOs to provide you with either the requested records or a revised response within ten (1 0) days. In compliance with my order, the remaining DAOs, with the exception ofthe Worcester DAO, provided responses to this determination. You appealed each of these responses. Your appeals with the Essex DAO (SPR 15/674) and Middlesex DAO (SPR 15/638) were not included in the August 13 determination; however, I will consider them in this determination. Whereas the requests and responses are substantially similar, I have combined the reconsiderations and appeals into one administrative order. 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, 15/285, 15/558, 15/638, 15/674, Page Two 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 Request Specifically, you requested from each DAO "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) 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, § 10(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).

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Three 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 It should be noted that the Office of the Attorney General (AGO), the Northwestern DAO, the Middlesex DAO, the Norfolk DAO, the Berkshire DAO, and the Bristol DAO provided, or offered to provide, much of the requested information contained in each DAO's respective database. Creation of a record versus a query search within an existing record Several DAOs claim that producing the information that you seek requires creation of a new record. 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 completely 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 the 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). Contrary to the Plymouth DAO's contention in its letter dated August 26, 2015, this portion of the Conte decision was not superseded. See Globe Newspaper Co. v. Dist Attorney for the Middle Dist., 439 Mass. 374, 385 (2003) (modifying only the wording ofthe declaratory judgment in Conte). 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 staff time and huge expenditure of resources." See (August 27, 2015 response of the Hampden DAO, Page 3). 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.

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Four 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 Fees A custodian of records may assess a reasonable fee for complying with a request for public records. G. L. c. 66, § lO(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(l)(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 ofresponsive records. Criminal Offender Record Information (CORI) Act Several DAOs claim that release of the requested information could violate the CORI law. These DAOs decline to provide this data without further clarity and assurance that release of this information would not violate the CORI law. With regard to the case ID number and defendant ID number, these DAOs claim that linking these two data fields with the docket number of every case in DAMION permits you to, in many cases, identify individual defendants and ultimately the victims and witnesses associated with their crimes. They claim this violates CORI as well as several other statutes, including those related to victim's rights, juvenile offenders, and sealed records. In addition, they state that providing you with defendant ID numbers and case ID numbers linked to docket numbers provides you with defendant-specific information in violation of these legislative directives. They cite the Globe decision to support this claim. See 439 Mass. at 385. Several DAOs also claim the remaining requested data fields are exempt from disclosure under the CORI law because production of every docket not in relation to a specific issue or case type is an "unsettled area oflaw." See (August 27, 2015 response of the Hampden DAO, Page

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Five 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 2). They claim it is "ambiguous" whether providing the requested records would violate the CORI law because the request is a "blanket request" and is not for a particular type of case. However, the DAOs have not explained how providing the case ID numbers and defendant ID numbers would allow you to identify the victims and witnesses associated with their crimes. The DAOs have not explained whether the case ID numbers and defendant ID numbers have a particular meaning, e.g., whether case ID numbers reveal a particular crime type. In addition, "[ d]ocket numbers of criminal cases prosecuted in public judicial proceedings, correlated with information that is also available from court or other public records, but not correlated with defendant-specific information, are public records ...." Globe, 439 Mass. at 385. The DAOs have not explained with specificity how providing the requested data fields would inform you that each case "had a particular attribute that could not have been ascertained from public records." Id. As noted elsewhere in this determination, other DAOs and the AGO have provided the requested data. Further, although this request is for case ID numbers and defendant ID numbers, the public has access to court clerks' alphabetical indices of defendants' names and may thereby obtain access to court records concerning an individual defendant. Globe Newspaper Co. v. Fenton, 819 F. Supp. 89, 100-01 (D. Mass. 1993). As a result, the DAOs have failed to meet their burden of explaining with specificity how the requested data is exempt from disclosure under the CORI law. The statutory exemptions are narrowly construed and are not blanket in nature. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). Accordingly, the DAOs have failed to overcome the presumption that the requested data fields are public records. Appeals not included in the August 13 determination Although your appeals with the Essex DAO (SPR 15/674) and Middlesex DAO (SPR 15/638) were not included in the August 13 determination, I will consider them in this determination because they involve similar requests and responses. Essex County District Attorney (SP R15/674 ) You initiated this appeal in a letter to this office dated August 13, 2015. You made a public records request on July 13, 2015 for eleven (11) columns contained within the DAMION database. The Essex DAO responded in a letter dated July 23, 2015 and provided a fee estimate of $270.00 for the provision of records. You submitted an additional request to the DAO on July 23, 2015 to provide a copy ofthe SQL query or share it with the other DAOs. You paid the fee "under protest" and appealed portions of the DAO's response to this office.

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Six 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 In your August 13 letter, you appealed three aspects of the July 23 response: the fee estimate amount, the failure to provide the requested data, and the failure to provide a copy of the SQL query or explain whether it will share it with the other DAOs. In a letter dated September 10,2015, the DAO refunded you the entire $270.00 fee and stated "[t]o the extent this Office provides the requested data, it will waive all associated costs." It further states, "[w ]e are actively reviewing this matter and will notify you immediately of our response." To date, I have not received the DAO's supplemental response. Middlesex County District Attorney (SP R 15/638) In a letter to this office dated July 29, 2015, you appealed the Middlesex DAO's response to your request for "a copy of the SQL query written in response to my January 6 public records request." In your request dated July 2, 2015, you informed the DAO that you have no objections if the DAO agrees to keep the SQL query on file so it will be available for future public records requests and provide the SQL query to other DAOs in the Commonwealth. You reiterated this position in your appeal petition to this office. In conversations with a member of my staff, Assistant District Attorney Kerry Anne Kilcoyne indicated that the SQL query used to respond to your public records request has been saved by the DAO. Attorney Kilcoyne did add, however, that the query used in future public records requests may change due to the nature ofthe requests and status of the applicable cases. Whereas the DAO has kept the SQL query on file, I will consider this appeal closed. Reconsiderations On August 13, 2015, you asked that I reconsider my findings in the August 13 determination with regard to the Northwestern DAO (SPR15/185) and Middlesex DAO (SPR15/285). I found that both the Northwestern DAO and Middlesex DAO provided good faith fee estimates in compliance with the Public Records Law and its Regulations. I will address both matters 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 for $738.00. I found this was a good faith estimate made in compliance with the Public Records Law and its Regulations. In your letter to this office dated August 13, 2015, you object to the DAO's fee estimate because "the agency provided no detail to explain who would do the work and why it would take 20 hours." You further object to the DAO's "assertion that it needs to exclude certain cases ..." such as information about juveniles, sexual assault victims, or sealed cases.

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Seven 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 In a conversation with this office, the DAO indicated it is using the hourly rate 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. The DAO may assess a fee for the time to search for and segregate the responsive records. 950 C.M.R. 32.06(1)(c). However, with regard to sealed cases, the DAO states the administrator will "conduct a select query that would exclude cases with dispositions ending in a nolle prosequi, not guilty, or dismissal. .. "because these cases may be subject to "sealing under§ lOOC." The DAO indicates this will be a complicated process and "the time to run the search query will be charged to the requester." However, upon further consideration, I find the DAO may not limit the query search to exclude potentially responsive records merely because certain cases may by subject to sealing. Accordingly, the DAO may not charge the requester for the time to conduct this limited query. I will not opine on the validity of the DAO's other exemption claims because redacted material has yet to be provided. In an email to this office dated September 8, 2015, you indicate you asked the Northwestern DAO to revise its fee estimate because it recently provided similar records to a colleague free of charge. To date, I have not received a copy of the revised fee estimate. However, please note that your colleague's experience with the DAO is not necessarily instructive because her request was not identical to your January 6 request. Middlesex County District Attorney (SPR15/285) The Middlesex County DAO provided you 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. You paid the fee estimate amount, but appealed the fee estimate and questioned how the DAO arrived at the costs of the estimate. In the August 13 determination, I found the DAO's fee estimate to be compliant with the Public Records Law and its Regulations. In your letter to this office dated August 13, you claim that the Middlesex DAO is charging you to "double check" that their records are accurate. Providing responsive records involves extracting certain information that may be exempt from disclosure under the Public Records Law, such as information regarding juvenile offenders, sexual assault victims, and sealed cases. I find the time spent to ensure that exempt material is not disclosed to be segregation time. See 950 C.M.R. 32.03. Therefore, the fee estimate provided by the DAO is reasonable under the Public Records Law. You also state in your August 13 letter that you object to the DAO charging you $5.00 for the compact disc on which the records were provided. The fee estimate provided on January

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Eight 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 16,2015 was $543.46. This fee was comprised of$538.46 for search and segregation time and $5.00 for a compact disc. I understand you paid the amount of$538.46 and therefore did not pay the $5.00 fee for the compact disc. The DAO is advised that it may only charge fees that reflect the actual cost of complying with a particular request. G. L. c. 66, § 10(a). However, whereas you did not pay the $5.00 fee for the compact discs and the $538.46 fee for search and segregation time was reasonable, I affirm that the Middlesex DAO's fee estimate was compliant with the Public Records Law and its Regulations. It should be noted that in the August 13 determination, I addressed your objections to the DAO's initial withholding of a column in the database containing sentencing information. As discussed in that determination, the DAO indicated it would run a separate query that would include three excluded categories. You informed this office in an email dated October 22, 2015 that the DAO has yet to provide these additional records. Failure to provide a response to the August 13 order Worcester County District Attorney In the August 13 determination, I ordered the Worcester DAO to conduct a query search within the DAMION case management system for responsive data and provide a response within ten (1 0) days. The DAO has failed to comply with my order and has indicated it does not intend to do so. Responses to the August 13 order Several DAOs provided responses to the August 13 determination and I will discuss each response below. Norfolk County District Attorney In the August 13 determination, I ordered the Norfolk DAO to provide a revised estimate containing the detail required by the Regulations to support its $800.00 estimate within ten (10) days. The DAO provided the $800.00 fee estimate in a letter dated August 12,2015. You appealed the August 12 response in a letter dated August 13, 2015. The Norfolk DAO responded to this determination in a letter dated August 20, 2015. I will address the concerns you outline in the August 13 letter in this determination. The August 20 letter from the DAO explains that it "intends to use its Information Technology Director, who is both the lowest paid and the only employee capable of performing this task of search and segregation (emphasis in original)." The DAO also indicates that the $800.00 estimate was based on an hourly rate of $32.00, which is lower than the IT Director's hourly rate.

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Nine 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 Further, the DAO explains that the time estimated for search and segregation time was based on the time to find the locations of the fields, construct multiple queries, filter the retrieved data to remove exempt information such as juvenile cases, sexual assault victim's names, and sealed cases. I find this amount of time to be reasonable. Accordingly, I find the DAO's fee estimate to be compliant with the Public Records Law and its Regulations in light of its August 20 letter. In an email to this office dated September 8, 2015, you asked the Norfolk DAO to revise its fee estimate because it recently provided similar records to a colleague free of charge. I cannot opine on this because I have not received a revised fee estimate as of the date of this determination. However, please note that your colleague's experience with the DAO is not necessarily instructive because her request was not identical to your January 6 request. Berkshire County District Attorney In the August 13 determination, I ordered the Berkshire DAO to conduct a query search within the DAMION case management for responsive data and provide a written response within ten (1 0) days. The DAO provided a response in a letter dated August 14, 2015 in which it provided much of the responsive information at no charge. However, the DAO did not provide the case ID number, the charge/crime description, charge/crime type, and defendant ID. As stated in the August 14letter, the DAO withheld this information because it is "collected for the sole purpose of the internal management of this [the DAO's] case files and is based upon the confidential work product, and is therefore not a public record." You objected to the withholding of these records in your letter to this office dated August 20, 2015. As discussed above, there is a presumption that case ID numbers or defendant ID numbers are public records. The Supreme Judicial Court (SJC) addressed the issue of"work product" within the context of Exemption (d) ofthe Public Records Law. See DaRosa v. New Bedford, 471 Mass. 446, 448 (2015). However, whereas the DAO does not explain Exemption (d)'s applicability to the requested records, nor cite the DaRosa decision, I find the DAO failed to meet its burden to withhold the case ID number, the charge/crime description, charge/crime type, and defendant ID. Bristol County District Attorney The Bristol DAO previously provided much of the requested information. In the August 13 determination, I ordered the DAO to provide any remaining data within the DAMION case management system within ten (10) days. In a letter dated August 28, 2015, the DAO states "[b] ecause in our view the release of further information runs afoul of the prohibitions on the release of [CORI] we decline to make any further data available. [G.L.] c. 234A, §33."

Mr. Todd Wallack SPR151185, 15/285, 15/558, 15/638, 15/674, Page Ten 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 The DAO further states "[l]inking two of the data fields, case ID number and defendant ID number, with the docket number of every case in DAMION, permits you to identify individual defendants and ultimately the victims and witnesses associated with their crimes." The DAO claims this violates CORI as well as several other statutes, including those related to victim's rights, juvenile offenders, and sealed records. In addition, the DAO claims "[p] roviding you with defendant ID numbers and case ID numbers linked to docket numbers provides you with defendant-specific information in violation of these legislative directives" and cites Globe, 439 Mass. at 385. The DAO also claims, "[p ]ossession of this data allows you to assemble a parallel CORI database" which would "totally undermine the purpose of the CORI Law." Finally, the DAO reiterates its claim that "producing the information that you seek requires creation of a new record." However, for the reasons discussed above, the DAO has failed to overcome the presumption that the requested data fields are public records. Hampden County District Attorney, Plymouth County District Attorney, Cape and Islands District Attorney, and the Suffolk County District Attorney In their responses to the August 13 order, the Hampden DAO, Plymouth DAO, Cape and Islands DAO, and the Suffolk DAO denied your request in full and provided similar claims in support of the denial. These DAOs state that this request raises unsettled questions of law and it would not release portions of the requested data until it received "clarity and assurance" that the release of the information would not violate the CORI law. However, for the reasons discussed above, these DAOs have failed to overcome the presumption that the requested data fields are public records. Orders With respect to any order below, if any DAO maintains that a portion of a responsive record contains exempt materials disclosing the identity of juveniles, sexual assault victims, sealed cases, or any other exempt information, it must provide a written explanation, with specificity, 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.

Mr. Todd Wallack SPR15/185, 15/285, 15/558, 15/638, 15/674, Page Eleven 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 Essex County Whereas the DAO refunded the entire $270.00 fee, I will consider the fee estimate portion of your appealed closed. The DAO is hereby ordered to provide the requested records and the SQL query, redacted in a manner consistent with the Public Records Law and this order. Northwestern District The DAO is hereby ordered to provide a revised fee estimate that does not include time to conduct the limited query that excludes cases that may potentially be sealed. Middlesex County (SPR15/285) The DAO is hereby ordered to provide the records, redacted in a manner consistent with the Public Records Law and this order, produced as a result of the separate query of the three excluded categories related to sentencing information. Berkshire County The DAO is hereby ordered to provide the responsive case ID number, the charge/crime description, charge/crime type, and defendant ID, redacted in a manner consistent with the Public Records Law and this order. Bristol County The DAO is hereby ordered to provide any remaining responsive records within the DAMION case management system, redacted in a manner consistent with the Public Records Law and this order. Hampden County, Plymouth County, Cape and Islands, and Suffolk County The DAOs in these counties are hereby ordered to conduct a query search within the DAMION case management system and provide the requested records, redacted in a manner consistent with the Public Records Law and this order. Worcester County The DAO is hereby ordered to conduct a query search within the DAMION case management system and provide the requested records, redacted in a manner consistent with the Public Records Law and this order.

Mr. Todd Wallack SPR15!185, 15/285, 15/558, 15/638, 15/674, Page Twelve 15/717, 15/718, 15/720, 15/721, 15/722, December 31, 2015 15/723, 15/724 Referral to the A GO Failure to comply with this order may result in a referral of this matter to the AGO. See G.L. c. 66, §1 O (b ). cc: District Attorneys in the Northwestern District, Hampden County, Norfolk County, Plymouth County, Berkshire County, Cape and Islands District, Bristol County, Essex County, Middlesex County, Suffolk County, and Worcester County