Todd Wallack v. Sex Offender Registry Board (SPR 20160257)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April27, 2016 SPR16/257 Mr. William H. Burke, Esq. General Counsel Executive Office of Public Safety and Security Sex Offender Registry Board P.O. Box 4547 Salem, MA 01970 Dear Attorney Burke: I have received the petition of Todd Wallack of The Boston Globe appealing the response of Sex Offender Registry Board (Board) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested a "current electronic list of Level 2 and Level 3 Sex offenders, including all the information in the database that is available to the public (such as the name, date of birth and address)." The Board responded in a letter dated April12, 2016 and indicated "there is no responsive electronic list." Mr. Wallack appealed this response. Previous appeal and determination This request was the subject of a previous appeal. See SPR16/190 Determination of the Supervisor of Records (March 24, 2016). In my March 24 determination, I closed the appeal with the proviso that the Board provide Mr. Wallack with a response to the request prepared in a manner consistent with the order, the Public Records Law and its Access Regulations. Current appeal (SPR161257) In the Board's Aprill2 response, you explain the Board's "database dos not allow for the exportation of publically available sex offender information into a searchable document or spreadsheet. The only available format is what is contained on the public internet website." You further explain "[t]he data you are seeking resides on an SQL server in Chelsea, Massachusetts and is contained on multiple tables and on multiple levels which builds the internet website." As such, you claim "there is no 'electronic list' available that would be responsive to your request." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. William H. Burke, Esq. SPR16/257 Page2 April27, 2016 In his appeal petition, Mr. Wallack explains he requested the responsive records in their native electronic format. Where the native form of the records requested is electronic the Board must respond to a request that the records be provided in that form. The Board has claimed no exemption to assist it in denying records in their native form. 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In addition, Mr. Wallack indicates the Board "redesigned its web site and tried to make it harder for members of the public to obtain this information." In a previous response dated March 9, 2016, you explained "we are legally prohibited from providing such information beyond the information already available at local police departments and on the agency's website at www.mass.gov/sorb. The Massachusetts Sex Offender Registry is legally made available in these two forms." In conversations with an attorney on my staff, you explained that access to Board information is governed by statute. G. L. c. 6, §§ 178D, 1781. You indicated the Board will provide a supplemental response to Mr. Wallack that addresses the issues discussed above. Conclusion Accordingly, I will consider this appeal closed with proviso that the Board, within ten (10) days, provide Mr. Wallack with a response to the request prepared in a manner consistent with this order, the Public Records Law and its Access Regulations. If the Board maintains that any portion of the responsive records are exempt from disclosure it must, within ten (10) days provide to Mr. Wallack 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § IO(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 ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a

Mr. William H. Burke, Esq. SPR16/257 Page 3 April27, 2016 records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone numbe, provided in this determination for further information. Supervisor of Records cc: Mr. Todd Wallack