Todd Wallack v. Sex Offender Registry Board (SPR 20170344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 30, 2017 SPR17/344 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 SPR16/190 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); SPRl 7/185 Determination of the Supervisor of Records (February 24, 2017). This office closed SRP 17 /185 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 March 17, 2017. Mr. Wallack appealed and SPRl 7 /344 was opened as a result. One Ashburton Place, Room 1719, Boston, Massachµsetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

William H. Burke, Esq. SPR17/344 Page 2 March 30, 2017 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 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. i 11 In the March 1 response to Mr. Wallack, you explain the Board's position that "the information you are seeking under the provisions of G.L. c. 6, § 178D, is not a public record." You indicate the "Board is statutorily responsible for safeguarding information that is generally not public. Only in limited circumstances, after an offender has been afforded his or her full panoply of due process rights, can the Board release very specific identifying information." The Board further indicates it "has been granted the authority to make rules about the dissemination of nonpublic information or specific public safety purposes." You state "[c Jonsistent with this authority, the Board promulgated regulations to implement the statutory directive for the release of nonpublic information for public safety purposes" which includes warnings and "visual puzzles." The Board has made good faith attempts to explain its position. However, the statutory mandate to the Board to make the requested information available to the general public on the internet speaks to the public nature of this information. G.L. c. 6, § 178D. Moreover, 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.). In light of this presumption, the Board has not

William H. Burke, Esq. SPRl 7/344 Page 3 March 30, 2017 met its burden to deny access to the records Mr. Wallack requested, nor demonstrated how it is in compliance with G.L. c. 6, § 178D. Conclusion Accordingly, the Board is hereby ordered to provide Mr. Wallack the responsive records without delay. 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