Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20170986)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 2, 2017 SPR17/986 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 ofthe 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); SPR17/ 801 Determination of the Supervisor of Records (June 28, 20 17). I closed SPR17/ 801 by ordering the DAO to 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 July 17, 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/ 986 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, § 10A(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). 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. SPR17/986 Page 2 August 2, 2017 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, § 1 O(b)(iv); 950 C.M.R. 32.06(3); 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 July 1i 11 response you indicate there are approximately 4,000 individual responsive records, which include "police reports generated by multiple agencies, data downloaded from cell phones, audio and video recordings of witness interviews, surveillance videos, crime scene photographs, an autopsy report, minutes from the grand jury proceedings, and many more items." You further assert "even though Aaron Hernandez and Ernest Wallace have already been tried, with an appeal and further proceedings underway, the possibility of re-trial remains. We do not know what issues will be raised on appeal, and until Mr. Wallace's direct appeal is concluded, the conviction is not final for the purposes ofpublicrecords disclosure."

Yul-mi Cho, Esq. SPR17/986 Page 3 August 2, 2017 With respect to the possibility of re-trial, you indicate you are "are obliged to protect our ability to prosecute the case at retrial which, in this case, turns on our ability to try the case before an impartial jury." You state "if the records are publicly disseminated and the jury venire already exposed to the contents of the records, the effort to present the testimony in the appropriate manner at trial would be virtually meaningless." You also refer to an order by the trial judge in Mr. Hernandez's case that "prohibited any prejudicial extrajudicial statements by the prosecution team." However, it is unclear how this order applies at this time to support withholding records under Exemption (f), particularly where the DAO notes the potential for re-trial involves Mr. Wallace's case. You also note that many evidentiary items and testimony were admitted at trial, as well as pretrial motions, that were publicly disseminated. However, you claim the court was required to make these records public under constitutional principles that "do not apply to the prosecution team." The DAO suggests "no person is capable of reliably segregating the previously disclosed information from those that are not yet disclosed or inadmissible at retrial. Obtaining access to the exhibits and records from the trial proceedings, through the court clerk's office, is the only means available to achieve such segregation." The DAO has not met is burden to show how disclosure of previously disclosed records through the prior trial or motions would taint the jury pool or hinder the prosecution's ability to participate in any potential re-trial. In particular, it is unclear how disclosure of these records would expose the jury venire to any information it would not already have access to as a result of previous disclosure. 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). In particular, the DAO has not demonstrated that every record responsive to the request, which seeks records pertaining to Mr. Hernandez, would be related to any potential re-trial for Mr. Wallace. 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, § lO(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.

Yul-mi Cho, Esq. SPR17/986 Page 4 August 2, 2017 Sincerely, ·~~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack