Todd Wallack v. Office of the District Attorney - Bristol District (SPR 20190677)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 10, 2019 SPR19/677 Mary Lee, Esq. Assistant District Attorney ~ffiee 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); SPR18/2097 Determination of the Supervisor of Records (January 10, 2018). The January 1o th determination ordered the DAO to provide Mr. Wallack with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The DAO provided a response on January 31, 2019. Mr. Wallack appealed and SPRl 9/677 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 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. SPR19/677 Page 2 April 10, 2019 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). 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, § 1 O(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,_,tf-Hlhere are any fees associated with a response~itten, good faith estimate must be provided. G. L. c. 66, § 1 O(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 my January 1o th determination I found the DAO had not met its burden to show how a Judge's Order from February 10, 2014 operates through an exemption to the Public Records Law to allow for the withholding of responsive records. In its January 31st response the DAO asserts "[a]s explained in the index from this office, dated December 20, 2018, this office is prohibited from.providing documents publicly by means of a court order in the underlying criminal case dated February 10, 2014. A violation of a court order is forbidden by law and can result in contempt by the violator." The DAO also indicates" ... the person seeking access to such records, here Mr. Wallack, ordinarily has the responsibility to file a motion in the Superior Court to remove restrictions to access to impounded material. E.g. Commonwealth v. Fujita, 470 Mass. 484, 489- 490 (2015) (Boston Globe sought access to juror names through a motion in the Superior Court); Commonwealth v. Barnes, 461 Mass. 644, 645 (2012) (radio station filed petition to rescind order restricting its dissemination of name of minor victim that had been recorded in court)." In a March 13th email to the DAO Mr. Wallack indicated "[i]n light of today's Supreme Judicial Court decision, it appears the criminal court case you referenced in your January 31, 2019 denial letter (Commonwealth v. Hernandez) is now fully resolved. Therefore, I ask that you kindly provide the requested records related to appeal SPR 18/2097." In a March 27th email you refer to the January 31st response and note "[w ]hile the order is in effect, I am prohibited from disclosing materials. My opinion is that the completion of the appeal does not undermine the . 11 court order." In his March 2i appeal petition Mr. Wallack notes "[i]t is clear the pre-trial order does not apply to a fully resolved case. Nor does it apply to documents requested under the public records law." I find the DAO has not met its burden to show how the 2014 Judge's Order restricts access to all of the records at issue in this appeal. Further, it remains unclear how this order

Mary Lee, Esq. SPR19/677 Page 3 April 10, 2019 remains in effect, particularly in light of the fact that the Supreme Judicial Court recently issued a decision regarding Mr. Hernandez's case. 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 ... "). The DAO must clarify this matter. 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 ithin 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, Rebecca S. Murray Supervisor of Records cc: Todd Wallack