Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20171144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 6, 2017 SPR17/1144 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 the 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 ofrecords that should be included with the requested records. Previous appeals This request was the subject of previous appeals. See SPRl 7/706 Determination of the Supervisor of Records (May 26, 2017); SPRl 7/801 Determination of the Supervisor of Records (June 28, 2017); SPRl 7/986 Determination of the Supervisor of Records (August 2, 2017). I closed SPRl 7/986 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 August 17, 2017 in which it claims responsive records may be withheld in their entirety under Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(f). Mr. Wallack appealed and SPRl 7/1144 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). 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. SPRl 7/1144 Page 2 September 6, 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, § lO(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. Exemption (I) 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, 3 71 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 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 Reinstein, 378 Mass. at 289-90. In the DAO's previous response dated July 17, 2017 you indicate there are approximately 4,000 individual responsive records, which include "police reports generated by multiple agenci_es, 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 also claim the DAO is "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."

Yul-mi Cho, Esq. SPRl 7/1144 Page 3 September 6, 2017 In the DAO's August 1J 1h response you explain that with respect to the impact of a potential retrial of Mr. Wallace, "Mr. Hernandez and Mr. Wallace were tried under the theory of joint venture." You continue by stating "where the co-defendants were acting together to commit the crime, the evidence of one's guilt is inextricably linked to the evidence of the other's guilt. In short, the cases are built on and rely on the same evidence." With respect to the applicability of a gag order from 2014 you claim "[n]othing about the current procedural posture provides a basis for the commonwealth to abandon either the principles of the gag order or to flout the court's stated intention to prevent public disclosure of all of the evidence unless and until there is final resolution of these matters." Regarding the ongoing nature of this matter you state "[a]s we have repeatedly explained, our prosecutions against Mr. Hernandez and Mr. Wallace are still pending. The Bristol District Attorney has not publicly disseminated any of the requested materials." You further note that "[t]hese materials were necessarily compiled outside of the public view and continue to be maintained that way. It is not possible for the District Attorney to predict what lies ahead in these matters and in which forum and under what circumstances it will need to litigate these cases based upon future rulings by the Court.". The DAO provides information regarding the prosecution process by noting that "these cases are in no different posture today than they were in prior to trial. The jury trials in these matters were simply one step in the process of prosecuting the cases from investigation to final resolution." You assert that "[d ]isclosure of documents outside of the litigation of the cases is inconsistent with the obligations of the District Attorney, the orders of the court and has the very real possibility of prejudicing the effective prosecution of these matters by publicly disclosing information that the District Attorney is required to safe-guard in the situation." The DAO concludes by stating "[f]or these reasons, we continue to assert the investigative exemption under G. L. c. 4, §7, cl. 26(f) on the responsive records until the conviction for Mr. Wallace has been affirmed by the Appeals Court." Production ofp reviously disclosed records Although you state "[t]he Bristol District Attorney has not publicly disseminated any of the requested materials," it is unclear which responsive records, despite the 2014 gag order, appear in public court filings. It also remains unclear 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, the DAO has not met its burden to show 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. Segregable portions; applicability ofE xemption (f) to all records 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

Yul-mi Cho, Esq. SPRl 7/1144 Page4 September 6, 201 7 disclosure would not be in the public interest" as required by Exemption (f). In particular, the DAO has yet to demonstrate that every record responsive to the request, which seeks "any and all records" pertaining to Aaron 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, § 10(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, ~a~ Supervisor of Records cc: Todd Wallack