Todd Wallack v. Sex Offender Registry Board (SPR 20160653)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords September 16, 2016 SPR16/653 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 ofthe Sex Offender Registry Board's (Board) response to a request for public records. Specifically, Mr. Wallack requested a "current electronic list ofLevel2 and Level3 Sex offenders, including all the information in the database that is available to the public (such as the name, date of birth and address)." Previous appeals and determinations This request was the subject of a previous appeal and multiple determinations. See SPR16/190 Determination of the Supervisor of Records (March 24, 2016). See also SPR16/257 Determination of the Supervisor of Records (April27, 2016; July 19, 2016). In my July 19 determination I found the Board had not sufficiently explained the statutory and regulatory restrictions to access and that it must provide a revised written response explaining the applicability of statute and regulation to the records in the form requested. The Board provided a response to the order in a letter dated August 9, 2016. Mr. Wallack informed this office he objects to this response and seeks further action with respect to this appeal. Current appeal In the Board's August 9 response you claim the records cannot be provided in the requested format due to Exemption (a) of the Public Records Law. Exemption (a), known as the statutory exemption, permits the withholding of records that are: 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. SPR16/653 Page2 September 16, 2016 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In a telephone conversation you explained that the information Mr. Wallack requests is currently available on the Board's website. In particular, a search for a Level2 or Level3 sex offender will result in a list of all such offenders, in table format. The table includes Offender Name, Level (2 or 3), Registration Status, Address Type (Work or Live), Address and County. In the Board's August 9 response you cite statutory authority to support the Board's position that records cannot be provided in the requested format. G. L. c. 6, § 178J(a)(4). This chapter of this statute is titled "Procedures for Making Request for Sex Offender Registry Information: Information Disseminated" and provides "[a] person who requests sex offender registry information shall" among other things "complete and sign a record of inquiry, designed by the Board" that states the following: "I understand that the sex offender registry information disclosed to me is intended for my own protection or for the protection of a child under the age of 18 or another person for whom I have responsibility, care or custody." Such records of inquiries shall be kept confidential, except that such records may be disseminated to assist in a criminal prosecution. G. L. c. 6, § 178J(a)(4)

Mr. William H. Burke, Esq. SPR16/653 Page 3 September 16, 2016 You state that only "after acknowledging that one is requesting records for one of the purposes enumerated by statute, is [the Board] lawfully allowed to release specific sex offender information." Further, you state the Board "encourages the public to use its website for all lawful purposes, but in requiring the assertion of a lawful purpose, [the Board] is simply following its statutory mandate." You explain in the August 9 response that the Board "is only legally authorized to provide information on sex offenders for the specific purpose of the protection of the public." You further indicate that by statute "[i]nformation is available for inspection' ...t o ensure accuracy, integrity and security of information contained therein ... and to protect against the inaccurate, improper, and inadvertent publication of registration data on the internet."' G. L. c. 6, § 178D. You explain "[t]he format in which [Mr. Wallack has] requested this information is contrary to the format authorized by statute." See also Moe v. Sex Offender Registry Bd., 467 Mass. 598 (2014). Absent statutory restriction records must be provided in native format if available In his appeal petition, Mr. Wallack indicates he is "seeking the same information that the state has already posted on the open Internet pursuant to G. L. c. 6, § 178D in the native electronic format." Generally, a records custodian is required to provide a public record in its native format if available. I find the Board has met its burden to explain how the statutory limitations with respect to this specific data indicate that such provision is not possible. Conclusion Accordingly, and for the reasons stated above, I find the Board has met its burden of specificity in citing statutory authority that limits the availability of the responsive records. If Mr. Wallack is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). cc: Mr. Todd Wallack