Lauren Kirchner v. Office of the District Attorney - Middlesex District (SPR 20170989)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 25, 2017 SPR17/989 Sandra Weisberger, Esq. Assistant District Attorney Office of the District Attorney Middlesex District 15 Commonwealth A venue Woburn, MA 01801 Dear Attorney Weisberger: I have received the petition of Lauren Kirchner, Senior Reporting Fellow at ProPublica, appealing the response of the Office of the District Attorney-Middlesex District (DAO) to a request for public records. G. L c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Kirchner requested the number of cases referred to the DAO by the Insurance Fraud Bureau each year for the most recent five years the DAO has available, and the defendant's name, address and case number. DAO's response The DAO informed Ms. Kirchner in its May 11th response that the DAO does not track the number of cases referred to their office by the Insurance Fraud Bureau in the course of a year, or the number of cases that the DAO reviews, but does not prosecute. The DAO did provide Ms. Kirchner with the number of insurance fraud investigations from the past five years that are assigned to a prosecutor after review. However, the DAO has withheld the defendant's name, address and case number associated with the number of investigations pursuant to the Criminal Offender Record Information (CORI) Act. Ms. Kirchner appealed the DAO's decision to withhold the defendant's name, address and case numbers. In her July 20th petition, Ms. Kirchner notes that she made the same request to the DAOs in each county in the Commonwealth of Massachusetts and was provided with the case/docket numbers from the Berkshire DAO, Bristol DAO, Cape and Islands DAO, Essex DAO, Northwestern DAO, Suffolk DAO and Worcester DAO. Therefore, Ms. Kirchner appealed the partial denial by the Middlesex DAO. 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

Sandra Weisberger, Esq. SPR17/989 Page 2 July 25, 2017 Requirements for filing a petition for an appeal Whereas Ms. Kirchner did not provide the Records Access Officer (RAO) with a copy of her petition to the Supervisor of Records (Supervisor), this office provided the RAO with a copy. In petitioning the Supervisor, the requester must provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). 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, § 1O A( 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. 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. Criminal Offender Record Information Act You indicated in your response that the DAO cannot provide defendant names, addresses and case/docket numbers because that information constitutes CORI. Therefore, you state that the DAO is prohibited from releasing such information. See G. L. c. 6, § 167, et seq. The CORI Act is defined as: fined as: Any records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. c. 6, § 167.

Sandra Weisberger, Esq. SPR17/989 Page 3 July 25, 2017 The DAO's response did not contain the specificity required in a denial of access to public records. Instead, the DAO's response merely cites the general law citation regarding the CORI Act, without any further explanation as to the CORI Act's applicability to defendants' names, addresses and case/docket numbers. The DAO is not permitted to issue a blanket denial without providing any further information with respect to the requested records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. It is also unclear why the requested information must be withheld in its entirety and why it is not possible to redact exempt portions and release the remainder. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (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). Subsequent to a conversation with an attorney in the Public Records Division, you explained that you would review the request again and provide a further response to Ms. Kirchner. Conclusion Accordingly, whereas the DAO has indicated that a supplemental response will be provided, I will consider this administrative appeal closed with the proviso that the response is provided to Ms. Kirchner, in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. Ms. Kirchner may appeal the substantive nature of the response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Lauren Kirchner