Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20170801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 28, 2017 SPR17/801 Yul-mi Cho, Esq. Assistant District Attorney Office of the District Attorney - Bristol District 868 Purchase Street, P.O. Box 973 New Bedford, MA 02740 Dear Attorney Cho: I have received the petition of Todd Wallack of The Boston Globe appealing the response of Office of the District Attorney-Bristol District (DAO) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "any and all records" pertaining to Aaron Hernandez. Mr. Wallack specified categories of records that should be included with the requested records. Previous appeal This request was the subject of a previous appeal. See SPR17/706 Determination of the Supervisor of Records (May 26, 20 17). I closed SPR17/706 with the proviso that the Department 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 DAO responded in a letter dated June 14, 2017 in which it claims responsive records may be withheld under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(±). Mr. Wallack appealed and SPR17/801 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA( d); 950 C.M.R. 32.03(4). "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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Yul-mi Cho, Esq. SPR17/801 Page 2 June 28, 2017 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. In the DAO's June 14th response you indicate "[t]he requested records constitute evidence used to prosecute" three individuals. With respect to Mr. Hernandez, you explain "this office is preparing an appeal of that order and will seek to restore his conviction. The case against Mr. Hernandez will not be closed until there is a final ruling. Consequently, the litigation continues and there is a possibility that there will be ongoing litigation for some time to come." The DAO explains that the two other individuals either pled guilty or were found guilty of crimes associated with the murder of Odin Lloyd. You indicate that "[a] !though the prosecution of the three co-defendants proceeded separately, the three individuals were joint venturers in the murder and the same set of evidence against one proved the guilt of the other two individuals as well. Consequently, the records relating to Aaron Hernandez that are responsive to your request are concurrently evidence supporting the conviction of codefendant

Yul-mi Cho, Esq. SPR17/801 Page 3 June 28, 2017 Ernest Wallace." You also explain that "Wallace filed a notice of appeal; the record is currently being assembled; and the case, we anticipate, will be docketed with the Appeals Court shortly." The DAO also indicates "[w]e are obligated to maintain and preserve the evidence so that neither Wallace's right to a fair trial or our ability to prosecute the case is jeopardized." The DAO further asserts that "[d]issemination oftrial evidence spoils the venire and cripples our ability to select an impartial jury that is capable of determining the defendant's guilt based solely on the evidence admitted at trial together with appropriate instructions from the trial judge." You also reference a gag order from 2014 in Mr. Hernandez's case. With respect to evidence that was not trial evidence you assert that "[t]hrough motions or objections at trial, the defendant could rightly seek to exclude certain evidence under the United States Constitution or the common law rules of evidence. Yet, through pretrial publicity, if the venire has already been exposed to the information, it would risk the defendant's right to a trial decided by a fair and impartial jury." The DAO concludes by suggesting Mr. Wallack limit the scope of his request in order to reduce costs associated with producing responsive records. I find the DAO has not explained what type of responsive records it possesses. G.L. c. 66, § 1O (a)(ii), (b )(ii). In addition, although the DAO cites the selection of an impartial jury in support of its Exemption (f) claim, it is unclear how disclosure of responsive records would hinder the DAO's ability to select an impartial jury, particularly in light of the fact that the trials for the three individuals appear to have concluded. Further, it is unclear whether any portions of the responsive records could be provided that would not "probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required by Exemption (f). As such, the DAO has not met its burden to establish how the responsive records may be withheld in their entirety under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). I understand a Public Records Division staff attorney contacted you about this appeal. Conclusion Accordingly, the DAO is ordered to 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 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, ~~ P Rebecca S. Murray - - Supervisor of Records cc: Todd Wallack