Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20180652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2018 SPRlS/652 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 of records 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); SPR18/021 Determination of the Supervisor of Records (January 19, 2018, February 21, 2018). The January 19th determination ordered the DAO to provide Mr. Wallack responsive records in a manner consistent with the order, the Public Records Law and its Regulations. The February 21st determination ordered the DAO to provide Mr. Wallack a revised fee estimate in a manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response on March 19, 2018. Mr. Wallack appealed and SPR18/652 was opened as a result. Current appeal In its March 19th response the DAO indicates "[o ]ur position, as stated in our January 3, 2018 letter, is that the redactions are required by law, G.L. c. 4, §7, cl. 26(a) and (c)." The DAO 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. SPRIS/652 Page2 May 22, 2018 cites G. L. c. 93H, § 3 and S.J.C. Rule I :24 and asserts "where the above quoted statute and the Court rules require the redaction of personal identifying information from court files, the information that should have been redacted fall outside the definition of 'public record."' You also indicate "there is no indication in any of the applicable law here that the circumstance of the court records not having been properly redacted prior to their filing should change the non-public nature of the information that we now seek to redact." In his appeal petition Mr. Wallack indicates the DAO "has refused to provide further documents -including documents it acknowledges are publicly available in court files - and has not responded to multiple requests to detail what documents it is withholding." He also explains that with respect to documents in the public court file, "[b] ecause the department refused to provide a copy of the public court files, we have since traveled to the Bristol County Superior Courthouse ourselves and copied those documents; therefore, we have told the department we no longer need copies of the documents that are in the public court file." Mr. Wallack also explains that "we continue to be interested in obtaining copies of additional files the Bristol County District Attorney office may be withholding. However, it is unclear what specific additional documents the Bristol County District Attorney has in its possession." Custodial index of responsive records The Supervisor may require a custodian to compile an index of the requested records where numerous records or a lengthy record have been requested. Said index shall meet the following requirements: 1. the index shall be contained in one document, complete in itself; 2. the index shall adequately describe each withheld record or redaction from a released record; 3. the index must state the exemption or exemptions claimed for each withheld record or each redaction of a record; and 4. the descriptions of the withheld material and the exemption or exemptions claimed for the withheld material must be sufficiently specific to permit the Supervisor to make a reasoned judgment as to whether the material is exempt. 950 C.M.R. 32.08(5)(a)-(c). It is uncertain which responsive documents the DAO is currently withholding, particularly in light of the fact that Mr. Wallack no longer seeks documents that are in the public court file. I find a custodial index would act to assist in determining which records remain at issue and the extent to which an exemption applies to withhold responsive records. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § IO(a)(ii).

Yul-mi Cho, Esq. SPR18/652 Page 3 May 22, 2018 Status of the payment provided to the DAO Mr. Wallack also notes in his appeal petition that "I sent Bristol DAO a check for $850 (as requested) for documents on January 12, despite the fact that the department charged for redaction not permitted by law (as the Supervisor found in SPR 18-021). The department acknowledged receiving the check. (See attachment) But the department has yet to cash the check, return the check, or produce all the requested documents." He further notes that "[m]y understanding is the check was originally for the contents of nine boxes of court documents. The department provided the first box and then abruptly stopped providing any more documents. (As noted above, we are no longer seeking any court documents because we have obtained copies of those documents ourselves.)" It is unclear whether the cost of $850 to produce responsive records remains applicable, particularly in light of the fact that Mr. Wallack no longer seeks court documents. The DAO must clarify the status of the $850 check that Mr. Wallack provided. Please be aware, 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, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 C.M.R. 32.06(4). This office also encourages Mr. Wallack and the DAO to communicate further to narrow the scope of the request. See G. L. c 66, § lO(a)(i). The DAO must use its knowledge of the records to facilitate providing any responsive records. G. L. c. 66, § lO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the DAO is ordered to provide Mr. Wallack with a response to the request, which includes a custodial index as described above, 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: Todd Wallack