Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20182097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 10, 2019 SPR18/2097 Mary Lee, Esq. Assistant District Attorney Office of the District Attorney - Bristol District 868 Purchase Street, P.O. Box 973 New Bedford, MA 02740 Dear Attorney Lee: 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); SPR18/021 Determination of the Supervisor of Records (January 19, 2018, February 21, 2018); SPR18/652 Determination of the Supervisor of Records (May 22, 2018). The May 22nd determination ordered the DAO to provide Mr. Wallack with a response to the request, including a custodial index, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response on December 20, 2018. Mr. Wallack appealed and SPR18/2097 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

Mary Lee, Esq. SPR18/2097 Page 2 January 10, 2019 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, § 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In its December 20th response the DAO asserts "[t]he requestor has withdrawn his request for court records because he has already obtained copies of the court records." With respect to additional responsive records, the DAO asserts" ... the trial judge in this matter issued an order, on February 10, 2014, restricting public dissemination of information that was not presented in the trial court. That order was not specifically rescinded and there is an appellate case that remains pending. Commonwealth v. Hernandez, SJC-12501. Disclosure ofrecords that were not made part of the record in Superior Court therefore is governed by this order and restricts the dissemination of such materials. See Commonwealth v. Chism, 4 76 Mass. 171, 185, n.9 (2017)." You further note that "[i]n the event that the order restricting dissemination of non-court records is vacated, various documents within the file would constitute public records. However, they cannot be released until the completion of the criminal matters, including Commonwealth v. Hernandez, SJC-12501 and any appellate proceedings involving any co-defendant of Aaron Hernandez." Notwithstanding this argument, the DAO describes of groups of responsive records and the potential application of exemptions, including Exemptions (a), (c), (d), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (d), (f). In his appeal petition Mr. Wallack indicates "[u]nfortunately, the letter the Bristol District Attorney's Office provided lacks the specificity the Supervisor ordered. Instead of providing a list of' each withheld document,' the Bristol DA' s office instead provided a brief summary of the various reasons why it has refused to provide any records." Specifically, he outlines his objections the DAO's claims regarding certain categories ofrecords, such as "Records Videos and Photographs Seized by Consent," "Records Obtained by Means of a Search Warrant," jail calls, statements of witnesses, inter-agency letters, memos, and email.

Mary Lee, Esq. SPR18/2097 Page 3 January 10, 2019 Judge's Order from February 10, 2014 Although the DAO references the Judge's Order from February 10, 2014 and suggests "[d]isclosure of records that were not made part of the record in Superior Court therefore is governed by this order and restricts the dissemination of such materials," I find the DAO has not met its burden to show how this order operates through an exemption to the Public Records Law to allow for the withholding of responsive records. See G. L. c. 66, § 1O (b )(iv) (written response must "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 ... "). Please note, this office continues to encourage Mr. Wallack and the DAO to communicate further to narrow the scope of the request. See G. L. c 66, § 1O (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, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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, ~y~ Supervisor of Records cc: Todd Wallack