Ashley P. Allen v. Office of the District Attorney - Bristol District (SPR 20180534)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 4, 2018 SPR18/534 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 the response of Bristol County District Attorney's Office (DAO) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Patricia A. 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 SPRl 7/1062 Determination of the Supervisor of Records (August 7, 2017); SPRl 7/1435 Determination of the Supervisor of Records (October 19, 2017); SPR18/150 Determination of the Supervisor of Records (February 15, 2018). I closed SPRl 8/150 by ordering the DAO to provide Attorney Allen a response in a manner consistent with the order, the Public Records Law, and its Regulations. In a letter dated March 6, 2018 the DAO provided Attorney Allen with a response, indicating Attorney Allen holds a "unique right of access." Unsatisfied with the DAO's response, Attorney Allen petitioned this office and this appeal, SPRl 8/534, 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. SPR18/534 Page 2 May 4, 2018 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. The DAO's March 6th response Unique right of access In its March 6th response the DAO asserts "Attorney Ashley Allen, as counsel for the defendant in Commonwealth v. Eric Avellar (8973CR24485), has a unique right of access to the records associated with the case. First, under Mass. R. Crim. P. Rules 14 and 17, defendant should have been provided the full complement of discovery prior to trial and, through trial counsel, Attorney Allen should have access to those records." You further indicate "with access to the records under Rules 14, 17, and 30, 950 CMR 32.08 precludes Attorney Allen from pursuing an appeal of the denial of her public records request and, consequently, it defeats any suggestion that Attorney Allen should be able to access the records under the rules as well as under the public records law." In her appeal petition, Attorney Allen explains "[w]hile the identity of the requester should not matter, I do not have a notice of appearance in Mr. Avellar's case as ADA Cho would have you believe." She also argues "[a]s the Supreme Judicial Court has made abundantly clear, ' [ d]iscovery in the context of a new trial motion under Mass. R. Crim. P. 3 0( c )(4 ), 3 78 Mass. 900 (1979), is not a matter of right. The motion and affidavits must first establish a prima facie case before discovery is available. Once that hurdle is cleared, discovery is within the judge's broad discretion.' Commonwealth v. Arriaga, 438 Mass. 556, 569-570 (2003), citing Commonwealth v. Stewart, 383 Mass. 253,261 (1981). Thus, there can be no 'unique right of access' when there is no 'right' in the first place." In light of the information provided in Attorney Allen's appeal petition, I find that her ability to obtain responsive records through a discovery motion is unlike statutory provisions that grant requesters a unique right to access records, such as the Criminal Offender Record Information (CORI) Act, or student record statutes. See G. L. c. 6, § 172; G. L. c. 71, §§ 34D, 34E. As a result, I find the DAO has not demonstrated that Attorney Allen has a unique right to access these records that precludes her from pursuing an appeal with this office. See 950 C.M.R. 32.08(1)(a). Exemptions With respect to exemptions claimed by the DAO, you explain "[b] ecause our position is that public records law precludes this petition from being reviewed by the Supervisor in the first

Yul-mi Cho, Esq. SPR18/534 Page 3 May 4, 2018 place, exemptions under G.L. c. 4, §7, cl. 26 (a) and (c) with respect to materials such as grand jury minutes, medical records, autopsy reports etc. are not stated here. They are not waived." In its November 6, 2017 response, the DAO 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 "[t]he requested records (e.g. grand jury minutes, autopsy report, medical records, police reports, arrest cards, attorney correspondences, motions 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." It should be noted that as part of the criminal justice reform bill recently signed by Governor Baker on April 13, 2018, there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 2018. Given that it was signed with an emergency preamble, this is the current definition of CORI: "Criminal offender record information", records and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). It is unclear how all of the withheld records fall under the CORI Act; specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. 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).

Yul-mi Cho, Esq. SPR18/534 Page 4 May 4, 2018 It is unclear whether the DAO possesses responsive records that are considered public in light of the new CORI definition and/or the Globe decision. See G. L. c. 66, § 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 ....) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). The DAO must clarify this matter and produce any such records. I also find the DAO has not met its burden to withhold the entirety of the records under Exemption (c). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a ). Conclusion Given that the DAO did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the DAO is ordered to review the requested records, redact where necessary, and provide Attorney Allen with responsive records, provided 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.