Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20180021)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 19, 2018 SPRlS/021 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); SPRl 7 /1144 Determination of the Supervisor of Records (September 6, 2017); SPRl 7 /1404 Determination of the Supervisor of Records (October 18, 2017); SPRl 7 /1664 Determination of the Supervisor of Records (December 15, 2017). I closed SPRl 7/1664 by ordering the DAO to provide Mr. Wallack responsive records in a manner consistent with the order, the Public Records Law and its Regulations. The DAO responded in a letter dated January 3, 2018 in which it provided information about its fee estimate as well as its exemption claims. Mr. Wallack appealed and SPR18/021 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 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. SPR18/021 Page 2 January 19, 2018 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, § 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. Current appeal Fee estimates The DAO has provided fee estimates for the production of court records. In the DAO' s January 3rd response you indicate that with respect to the previously assessed fee of $75, "[i]t was necessary under the law to review and redact the records that were previously provided" and cite to G.L. c. 93H, § 2(c) in support of its position. You also note that "[i]nformation including bank account numbers, dates of birth, and residential addresses - routinely used in financial transactions - were redacted during this process." You also indicate that the DAO is prepared to produce a second installment of court records upon receipt of $875. You explain "[t]here are over 400 motions and memoranda filed in the case under the docket number BRCR2013-983. [Appendix 47-106] This estimation does not include the photographs and videos that have already been produced." You also explain that "[t]he court documents, as opposed to the photos and videos, have not been scanned or copied. I will have to retrieve the records in person, scan them individually, then review and redact them page by page. I believe a conservative estimate for completing this task is no fewer than 35 hours. Applying the $25/hr. rate, $875 is the cost estimate associated with the production of the remainder of the court records in this case." You also provided a copy of the docket and suggested Mr. Wallack review it to identifiy which specific records he is seeking. Exemptions With respect to its exemption claims, the DAO indicates "[f]or all those reasons stated in our previous responses to your petitions (SPRl 7/706, SPRl 7/801, SPRl 7/986, SPRl 7/1144, and SPRl 7/1401) we maintain our position that all records associated with BRCR2013-983 are not subject to public disclosure at this time." You further note "[t]he requested records are potential evidence in a companion case, numbered BRCR2013-984. In that case, the codefendant was found guilty of being an accessory to murder under G. L. c. 274,§4, and he was sentenced to serve a term of no less than 4 years and 6 months and no more than 7 years in the state prison." You also note that "the codefendant filed a notice of appeal on May 23, 2016. [A ppendix 21] Forty-six volumes of trial transcripts have been ordered and the record is being assembled

Yul-mi Cho, Esq. SPR18/021 Page 3 January 19, 2018 for appellate review. [Appendix 21-22,44-45] An appellate counsel Dennis Toomey has appeared on this case. [Appendix 1,23] With an appeal underway, our position has not changed; the conviction in the case is not yet final at this time and the evidence associated with the case cannot be publicly disseminated." As a result, you assert "all records in the possession of both Bristol County District Attorney's Office and the North Attleboro Police Department will continue to be withheld. But, as a courtesy, we will convey to you the records that are available from the Fall River Superior Court criminal clerk's office upon receipt of the fee as explained above." I previously found the DAO had not met its burden to show how Rule 3.8(±) 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 SPRl 7/1404; SPRl 7/1144; SPRl 7/1664. I maintain these findings despite the DAO's January 3rd response. With respect to any records continuing to be withheld, the DAO has not met its burden under Exemption (f) or Rule 3.8(±) of the Rules ofP rofessional Conduct: Special Responsibilities ofa Prosecutor to withhold responsive records in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (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, § lO(a). I understand a Public Records Division staff attorney contacted you about this appeal. 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 m~~c.state.ma.us. Failure to do so may result in referral of this matter to the Office of the Attorney General (AGO). See G. L. c. 66, § lOA(b). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack