Todd Wallack v. Sex Offender Registry Board (SPR 20170185)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords February 24, 2016 SPR17/185 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 the Sex Offender Registry Board's (Board) response to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 29, 2016, 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 has declined to provide the records in the requested format. Previous appeals This request was the subject of previous appeals. See SPRl 6/190 Determination of the Supervisor of Records (March 24, 2016); SPR16/257 Determination of the Supervisor of Records (April 27, 2016; July 19, 2016); SPR16/653 Determination of the Supervisor of Records (September 16, 2016); SPR16/813 Determination of the Supervisor of Records (October 18, 2016); SPR16/1187 Determination of the Supervisor of Records (December 20, 2016); SPRl 7/013 Determination of the Supervisor of Records (January 9, 2017). This office closed SRPl 7/013 with the proviso that the Board provide Mr. Wallack with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Board provided this response in a letter dated January 24, 2017. Mr. Wallack appealed and SPRl 7/185 was opened as a result. The Public Records Law I note that the request for the responsive records was made prior to the new provisions of the Public Records Law (Law) that went into effect on January 1, 2017. Therefore, the prior One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

William H. Burke, Esq. SPRl 7/185 Page 2 February 24, 2016 Law's provisions and regulations apply to this request and appeal. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(c) (2016 ed.); 950 C.M.R. 32.08(4) (2016 ed). "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). 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, § lO(c) (2016 ed.); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). 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. Current appeal In his appeal petition Mr. Wallack addresses the applicability of G. L. c. 6, § 178D to the records he requested. This statutory provision provides, in part, that the Board make sex offender information "available for inspection by the general public in the form of a comprehensive database published on the internet, known as the 'sex offender internet database.'" G. L. c. 6, § 178D. In its January 24th response to Mr. Wallack you explain G. L. c. 6, § 178D requires that the database include particular warnings and must" ... ensure accuracy, integrity and security of information contained therein ... and to protect against the inaccurate, improper, or inadvertent publication ofregistration data on the internet." You claim "[t]he format for which you are requesting this information is directly contrary" to the provisions of G. L. c. 6, § 178D. The Board also cites G. L. c. 6, § l 78J(a)(4 ) in support of its position. You also indicate the Board "is following its statutory mandate and encourages the public to lawfully use its internet website. Your request runs afoul of the statutory requirement for access to this information." In conclusion you claim "[g]iven the legal precedent and statutory constraints which only allows for release of sex offender information for your protection, the protection of a child, or another person in your care, you request, at a minimum, falls under [E]xemption (a) of the [P]ublic [R]ecords [L]aw." In his appeal petition, on which you were copied, Mr. Wallack indicates the Board has "refused to provide a copy of the database" and "has blocked the Globe and many other users from inspecting the online database in direct defiance of the law, both by adding captchas (visual puzzles) that are inaccessible to people with visual impairments and requiring users to swear they are using the data solely for the own protection, rather than any other purpose." Mr. Wallack also indicates his belief that "nothing in the statute specifically prohibits [the Board] from providing copies of the data."

William H. Burke, Esq. SPR17/185 Page 3 February 24, 2016 I find the Board must explain how, in light of the provisions of G. L. c. 6, § 178D, G. L. c. 6, § 178J, and any applicable statutes or regulations, providing records to Mr. Wallack in the requested "electronic list" is "directly contrary" to these provisions. Further, the Board must explain which statutory or regulatory provisions permit it to include "visual puzzles" and other restrictions on its website that provides access to the information. See G. L. c. 66, § 10(c)(2016 ed.); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) ( custodian has the burden of establishing the applicability of an exemption). In our February 24th conversation, you indicated the Board would provide a supplemental response to Mr. Wallack. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Board provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Todd Wallack