Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20171404)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 18, 2017 SPR17/1404 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 of records that should be included with the requested records. Previous appeals This request was the subject of previous appeals. See SPR17/706 Determination of the Supervisor ofRecords (May 26, 2017); SPR17/801 Determination ofthe Supervisor ofRecords (June 28, 20 17); SPR17/ 986 Determination of the Supervisor of Records (August 2, 20 17); SPR17/1144 Determination of the Supervisor of Records (September 6, 2017). I closed SPR17/1144 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 September 25, 2017 in which it claims responsive records may be withheld in their entirety. Mr. Wallack appealed and SPR17/1404 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. SPR17/1404 Page2 October 18, 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, § 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, § 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. The DAD's September 25th response With respect to the records previously made publically available through open court proceedings, the DAO 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 DAO also cites Rule 3.8(f) ofthe Rules ofP rofessional Conduct: Special Responsibilities ofa Prosecutor to support its position. As the DAO 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 DAO 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 DAO 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). Further, the DAO 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 DAO has not met its burden to establish how the responsive records

Yul-mi Cho, Esq. SPR17/1404 Page 3 October 18, 2017 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 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