Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20171664)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 15,2017 SPR1711664 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, 5 10A; 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. SPR171706 Determination of the Supervisor of Records (May 26,2017 ); SPR171801 Determination of the Supervisor of Records (June 28,2017); SPR171986 Determination of the Supervisor of Records (August 2,2017); SPRl711144 Determination of the Supervisor of Records (September 6,2017 ); SPRl711404 Determination of the Supervisor of Records (October 18,201 7). I closed SPR1711404 by ordering the DAO to provide Mr. Wallaclc 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. I granted the DAO an extension of time to produce responsive records. SPRl711560 Determination of the Supervisor of Records (November 9,2017 ). The DAO responded in a letter dated November 17,2017 in which it provided certain responsive records. Mr. Wallack appealed and SPR1711664 was opened as a result. 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. Page 2 December 15,201 7 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, 5 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, 8 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, lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 4 19 Mass. 507, 5 1 1 (1 995) (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. Current appeal In its November 17 thr esponse the DAO explains "the first installment of the court's records, consisting of the majority of the trial exhibits, burned to a CD, is enclosed." You note that portions of these records were redacted under Supreme Judicial Court Rule 1: 24 titled "Protection of Personal Identifying Information in Publicly Accessible Court Documents." You also ask Mr. Wallack to pay the DAO $75.00 to reimburse it for time spent to produce responsive records. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, 5 10(d). The fees must reflect Id. the actual cost of complying with a particular request. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, 5 lO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L, c. 66, 5 1O (d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be Id. more than $25 per hour. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, 5 lO(d)(iv). See G. L. c. 66, 5 lO(d)(ii); 950 CMR 32.06(4). With respect to the $75 fee you explain "I have expended one hour retrieving the trial exhibits from the clerk's office. Then I expended six hours reviewing each exhibit, making the

Yul-mi Cho, Esq. Page 3 December 15 ,201 7 redactions, and burning them to a CD. Excluding the first four hours of completing this task, under 950 C.M.R. 32.07(2)(1)(1), this office is entitled to be reimbursed for three hours of my time at the rate of $25 per hour, under 950 C.M.R. 32.07(2)(1)(3)." It appears the DAO is including time spent segregating or redacting records in this fee estimate. Please note a fee may not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, fj lO(d)(iv). See G. L. c. 66, 5 lO(d)(ii); 950 C.M.R. 32.06(4). To the best of my knowledge, the DAO has not submitted a petition under G. L. c. 66, 5 1O (d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the DAO may not currently seek permission to assess fees through a petition under G. L. c. 66, 5 lO(d)(iv). See 950 C.M.R. 32.06(4)(g). Further, it is unclear how segregation or redaction is required by law in this matter. Therefore, I find the DAO has not met its burden under the updated Public Records Law to justify the $75 feee. Withholding of records In its November 17'~re sponse the DAO asserts "[wlhile we maintain the position that the records in our possession may not be disseminated until the legal issues relating to the defendants in the case have been resolved, we have elected to relay to you the court's records in the case as those records are accessible to the members of the public." In a previous response to Mr. Wallack, the DAO cited Exemption (f) and Rule 3.8(f) of the Rules of Professional Conduct: Special Responsibilities of a Prosecutor to support withholding responsive records. I previously found the DAO had not met its burden to show Rule 3.8(f) pertains to the public's right to inspect records. I also found that the DAO had not met its burden to withhold responsive records in their entirety under Exemption (f). See SPR1711404; SPR1711144. I maintain these findings despite the DAO's November 17 thr esponse. The DAO must clarify when additional responsive records will be provided, as well as clarify whether records continue to be withheld under an exemption to the Public Recrods Law. With respect to any records continuing to be withheld, the DAO has not met its burden under Exemption (f) or Rule 3.8(f) of the Rules of Professional Conduct: Special Responsibilities of a Prosecutor to withhold responsive records in their entirety. 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, 5 1O (a). I understand a Public Records Division staff attorney contacted you about this appeal.

Yul-mi Cho, Esq. Page 4 December 15,201 7 Conclusion Accordingly, the DAO is ordered to provide Mr. Wallack responsive records 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, V Rebecca S. Murray Supervisor of Records cc: Todd Wallack