Ashley P. Allen v. Office of the District Attorney - Bristol District (SPR 20171435)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 19, 2017 SPR17/1435 Yul-mi Cho, Esq. Office of the District Attorney - Bristol 888 Purchase Street P.O. Box 973 New Bedford, MA 02740 Dear ADA Cho: I have received the petition of Attorney Ashley P. Allen appealing, on behalf of Attorney Patricia A. Dejuneas, the response of Bristol County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Dejuneas, requested "copies of or access to" various records related to an identified client of hers. This request was the subject of a previous appeal filed by Attorney Allen on the basis of the DAO's failure to provide a substantive response to Attorney Dejuneas. See SPR17/1062 Determination of the Supervisor of Records (August 7, 20 17). SPR1711 062 was closed with the proviso the DAO provide Attorney Allen with a response to the request. In a letter dated August 9, 2017, the DAO provided Attorney Dejuneas with a respon~e, claiming the responsive record exempt from disclosure and indicating Attorney Dejuneas holds a "unique right of access." See G. L. c. 4, § 7; G. L. c. 6, § 167; Mass. R. Crim. P. 30(c)(4); see also 950 C.M.R. 32.08(1)(a). Unsatisfied with the DAO's response, Attorney Allen petitioned this office and this appeal, SPR17/1435, 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. SPR17/1435 Page2 October 19, 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, § 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity of requester In her request, Attorney Dejuneas indicates her intent to obtain the requested records on behalf of her client. Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Dejuneas's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Attorney Allen and Attorney Dejuneas may wish to consider another means of seeking to obtain any existing responsive records. Exemption (a) The DAO's August 9, 2017 response indicates its position that the request "is, in essence, a request for complete copy of [the DAO's] case file in the matter of Commonwealth v. Eric Avellar, 8973CR24485. But the material constitutes Criminal Offender Record Information (CORI) that is not subject to disclosure under the Public Records Law. G.L. c. 6, § 167 et. Seq.; G.L. c. 4, §7, cl. 26 (a)." Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute

Yul-mi Cho, Esq. SPR17/1435 Page 3 October 19, 2017 G. L. c. 4, § 7 (26)(a). 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. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The DAO has cited the CORI Act as applicable to withhold the records pursuant to Exemption (a). CORI, which is statutorily exempt from disclosure, is defined as: [A ]ny 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 Intelligence information, which is not CORI and therefore not statutorily exempt from disclosure, is defined as: [R]ecords and data compiled by a criminal justice agency for the purpose of criminal investigation, including reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual. Intelligence information shall also include records and data compiled by a criminal justice agency for the purpose of investigating a substantial threat of harm to an individual, or to the order or security of a correctional facility G. L. c. 6, § 167. Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. 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 Exemption (a) and the CORI Act without any further explanation as to the exemption's and statute's applicability to the requested records. The DAO is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Based on the DAO's response is unclear what

Yul-mi Cho, Esq. SPR17/1435 Page4 October 19, 2017 responsive records the DAO possesses, how the responsive records each constitute CORI as described above and whether any portions of responsive records could be redacted to prevent disclosure of CORI information. The DAO must explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. See G. L. c. 66, § 10 ( a). As a result, I find that the DAO has not satisfied its burden in responding to this records request. The DAO is advised that 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. Unique right ofaccess In its response, the DAO indicates that "[a]s counsel for Mr. Avellar [Attorney Dejuneas] hold[s] a unique right of access to CORI records through a post-conviction discovery motion under Mass. R. Crim. P. 30(c)(4)." As this claim is additionally based on the DAO's assertion that the responsive records constitute CORiinformation I will reiterate that based on the DAO's response is unclear how the responsive records each constitute CORI. Consequently, it is unclear whether Attorney Dejuneas possesses a "unique right of access" to the requested information, which would bar the use of the Public Records administrative appeals process. Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the DAO intends to provide Attorney Allen with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the DAO provides said response 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. Attorney Allen may appeal the substantive nature of the DAO's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ashley P. Allen, Esq.