Todd Wallack v. North Attleboro, Town of - Police Department (SPR 20171399)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 18, 2017 SPR17/1399 John J. Reilly Chief of Police North Attleboro Police Department 102 South Washington Street North Attleboro, MA 02760 Dear Chief Reilly: I have received the petition of Todd Wallack of the Boston Globe appealing the response of the North Attleboro Police Department (Department) 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 provided categories of records that should be included with the requested records. Previous appeals This request was the subject of previous appeals. See SPR17/727 Determination of the Supervisor of Records (June 7, 2017); SPR17/815 Determination of the Supervisor of Records (June 29, 2017); SPR17/980 Determination ofthe Supervisor of Records (August 2, 2017); SPR17/1143 Determination of the Supervisor of Records (September 6, 2017). I closed SPR17/1143 by ordering the Department 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 Department responded in a letter dated September 25, 2017 in which it claims responsive records may be withheld in their entirety. I understand the content of this response is identical to that of the Office of the District Attorney-Bristol District (DAO)'s September 25, 2017letter regarding this request. Further, the DAO's September 25th letter references both SPR17/1144 (previous appeal with the DAO) as well as SPR17/1143 (previous appeal with the Department). Mr. Wallack appealed and SPR17/1399 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 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

John J. Reilly SPR17/1399 Page2 October 18,2017 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, § 10(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. The Department's September 25th response With respect to the records previously made publically available through open court proceedings, the Department asserts "[t]o accurately identify what responsive records have already been disseminated through the trial court, you must consult the clerk of the court who maintains the evidence admitted at trial and is acting under the direction of the trial judge who established the guidelines for the level of availability for each record." You also state that "[o ]ur own records are not segregated or labeled in a manner that permits us to delineate what is available through the trial court." The Department also cites Rule 3.8(f) ofthe Rules ofP rofessional Conduct: Special Responsibilities ofa Prosecutor to support its position. As the Department explains, this rule provides that prosecutors must refrain from making 'extrajudicial statements' about the case "that have a substantial likelihood of heightening public condemnation of the accused." The Department asserts "each record constitutes a piece of evidence contributing to the prosecution and conviction of Aaron Hernandez and Ernest Wallace. Each record, disseminated directly from our office to the public, has the potential to reach the public with new information about the case or refresh their memory about the case." You further claim that "[w]here Rule 3.8(f) is designed to prevent the prosecutor from exploiting the public opinion to enhance its case, the dissemination of the responsive records would constitute a violation of this rule." I find the Department has not met its burden to show Rule 3.8(f) pertains to the public's right to inspect records. Therefore, it is unclear how this rule operates through Exemption (a) of the Public Records Law to allow withholding of public records. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979) (a governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted).

John J. Reilly SPR17/1399 Page 3 October 18, 2017 Further, the Department has not met its burden to show that production of records previously disclosed through the prior trial or motions would "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 Department 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 Department is ordered to provide Mr. Wallack with responsive records, particularly those that were previously disclosed through the prior trial or motions, 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, ~~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack