Todd Wallack v. Bristol County District Attorney's Office (SPR 20190943)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 22, 2019 SPR19/943 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); SPR18/2097 Determination of the Supervisor of Records (January 10, 2018); SPR19/677 Determination of the Supervisor of Records (April 10, 2019). Ihe Apnl 1Ut11 determmat10n 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 May 10, 2019. Mr. Wallack appealed and SPR19/943 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. SPR19/943 Page 2 May 22, 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, § lO(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. Current appeal It is my understanding that Mr. Wallack possesses copies of the documents that are in the public court file, however, he continues to seek additional documents the DAO has in its possession. In my April 1o th determination I found the DAO had 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 remained unclear how this order remains in effect, particularly in light of the fact that the Supreme Judicial Court recently issued a decision regarding Mr. Hernandez's case. In its May 10th response the DAO asserts "[t]he Hernandez appeal was completed yesterday, May 9, 2019, when the rescript issued, after the denial of Hernandez's motion for reconsideration." You further explain that "[e]ven after a criminal case is final, court orders prohibiting the disclosure of records remain in effect until the order is terminated or modified by a court. Massachusetts Uniform Rules ofimpoundment Rule 6(b) (as amended April 24, 2015, effective October 1, 2015) (applicable to cases in which a final disposition has entered). The 2014 Order in this matter contains no provision on the duration of the order or any date or event that will result in termination of the order's requirements." The DAO asserts" ... no records can be disseminated until the Superior Court or an appellate court modifies or terminates the 2014 Order, under the legal authority explained above. As noted in my previous letter, 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." With respect to the issue of how the 2014 Order applies to the responsive records in this appeal, you indicate "[t]he requestor, Mr. Wallack, is a reporter and member of the media. He has requested any and all records pertammg to Aaron Hernandez. As noted above, the 2014 Order in Commonwealth v. Aaron Hernandez required the parties, including the Bristol District Attorney's Office, to prevent all persons associated with the investigations conducted by the prosecution from 'releasing any documents that are not in the public record, that are reasonably expected to be publicly disseminated .... ' 2014 Order, p. 22, paragraph 4 (emphasis added). Because this office fully expects Mr. Wallack, who is a reporter, to publicly disseminate any records that are provided to him and because he is requesting the very records described in the 2014 Order, there is no possibility that the 2014 Order does not apply to this public records matter."

Mary Lee, Esq. SPR19/943 Page 3 May 22, 2019 In his appeal petition Mr. Wallack asserts "[t]he order the agency is citing is clearly a pre-trial order barring extrajudicial comments before trial for a criminal case that has long since been resolved." He further notes that the order does not" ... mention public records requests, which the agency is required to respond to by matter oflaw." The 2014 Order appears to relate to the duty to refrain from prejudicial disclosures. As described by the DAO, the Hernandez appeal is now complete. Whereas the appeal in this case is complete, the DAO has not established how the 2014 Order's prohibition on releasing documents to prevent prejudicial disclosures can apply to the records at issue in this appeal. As a result, the DAO has not met its burden to show how the 2014 Order operates through an exemption to the Public Records Law to allow for the withholding of the remaining responsive records. See G. L. c. 66, § lO(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 ... "). Conclusion Accordingly, the DAO is ordered to provide Mr. Wallack responsive records 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. Failure to do so may result in referral of this matter to the Office of the Attorney General. See G. L. c. 66, § lOA(b). Sincerely, ~~ Supervisor of Records cc: Todd Wallack