Ashley P. Allen v. Office of the District Attorney - Bristol District (SPR 20180150)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the -Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 15,2018 SPR181150 Yul-mi Cho, Esq. Office of the District Attorney - Bristol 888 Purchase Street P.O. Box 973 New Bedford, MA 02740 Dear Attorney Cho: I have received the petition of Ashley P. Allen, Esq. 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, 5 10A; 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. Previous appeals This request was the subject of previous appeals. See SPR1711062 Determination of the Supervisor of Records (August 7,2017 ); SPR1711435 Determination of the Supervisor of Records (October 19,201 7). I closed SPR1711435 with the proviso that the DAO provide Attorney Allen a response in a manner consistent with this order, the Public Records Law, and its Regulations. In a letter dated November 6,20 17, the DAO provided Attorney Allen with a response, claiming the responsive record exempt from disclosure and indicating Attorney Allen holds a "unique right of access." See G. L. c. 4, 5 7; G. L. c. 6, 5 167; Mass. R. Crim. P. 30(c)(4). Unsatisfied with the DAO's response, Attorney Allen petitioned this office and this appeal, SPR181150, 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, 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 One Ashburton Place, Room 171 9, Boston, Massachusetts 0210 8 (6 17) 727-2832. Fax: (61 7) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Yul-mi Cho, Esq. Page 2 February 15,201 8 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, 5 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, 41 9 Mass. 507, 5 11 (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. The DA09sN ovember bthr esponse Unique right of access 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 requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59,64 (1976). Accordingly, Attorney Allen's purpose in making the request has no bearing on the public status of any existing responsive records. Also, 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 (1 998). As such, Attorney Allen may wish to consider another means of seeking to obtain any existing responsive records. In its November 6thr esponse, the DAO asserts that as counsel to her client, Attorney Allen may be able to access responsive records through a court order. In her appeal petition Attorney Allen indicates "a theoretical postconviction discovery motion, even if filed and successful, is not the equivalent to the right of access to public records. In fact, courts routinely deny motions for post-conviction discovery because the standard is high and defendants are disadvantaged by their limited access to the contents of prosecutor files." As a result, it is not clear that Attorney Allen has as unique right to access these records. See 950 C.M.R. 32.08(1)(a). Exemptions In its November 6thr esponse, the DAO also indicates that the requested material "constitutes Criminal Offender Record Information (CORI) that is not subject to disclosure under the Public Records Law." You further note that "[tlhe requested records (e.g. grand jury minutes, autopsy report, medical records, police reports, arrest cards, attorney correspondences, motions

Yul-mi Cho, Esq. Page 3 February 15,201 8 filed by parties, and trial witness lists) fall squarely within the statutory definition of CORI." You also note that "[m]oreover, even if the record on its face is not CORI, the act of providing the record to you would make it evident that the named individual was prosecuted by this office for the crime you have identified in your communications with us." In her appeal petition, Attorney Allen references a recent Superior Court decision regarding Criminal Offender Record Information (CORI). See Boston Globe Media Partners, LLC v. Dept. of Criminal Justice Info. Servs. et al., Suffolk Sup. No. 15-1404-D (December 4, 2017) (CORI decision). In this decision, the court found that "the Criminal Record Information Act, G.L. c. 6, 5 167 et seq., does not prohibit the defendants from providing public access to (a) booking photographs of police officers arrested for alleged crimes; (b) police incident reports involving public officials; and (c) chronological inmate logs of individuals currently incarcerated for criminal offenses, and that such records therefore are not exempt from the Public Records Law under G.L. c. 4, 5 7, cl. 26(a)." See id. at 14. In addition, the Supreme Judicial Court has held "there is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public." Globe Newspaper Co. v. Dist. Attorney for the Middle Dist., 439 Mass. 374,384 (2003) (Globe decision). It is unclear whether the DAO possesses responsive records that are considered public in light of the CORI decision and/or the Globe decision. See G. L. c. 66, 5 lO(b)(iv) (a written response shall "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based. . . .); Flatlev, 419 Mass. at 5 11 (custodian has the burden of establishing the applicability of an exemption). The DAO must clarify this matter and produce any such records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, 5 1O (a). Conclusion Accordingly, the DAO is ordered to provide Attorney Allen a 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ashley P. Allen, Esq.