Jordan M. Rice v. Office of the District Attorney - Plymouth District (SPR 20191454)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division -Rebecca S. Murray Supervisor of Records August 5, 2019 SPR19/1454 Jessica Kenny Records Access Officer Office of the District Attorney - Plymouth District 166 Main Street Brockton, MA 02301 Dear Ms. Kenny: . I have received the petition of Jordan M. Rice appealing the response of the Plymouth District Attorney's Office (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rice requested records related to an identified criminal case. Previous appeal The requested records were the subject of a previous appeal. See SPRl 9/1091 111 Determination of the Supervisor of Records (June 13, 2019). In my June 13 determination, I found that the Office had not met its burden to withhold records under Exemptions (a) and (f) of the Public Records Law. I also found that the Office had not established how Mr. Rice had a unique right of access to the requested information·. Accordingly, I ordered the Office to provide Mr. Rice with a response to the request, provided in a manner consistent with the order, the 111 Public Records Law and its Regulations. Following the June 13 determination, the Office responded on June 25, 2019, providing additional information regarding its exemption claims. Unsatisfied with the Office's response, Mr. Rice petitioned this office and this appeal, SPRl 9/1454, 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

Jessica Kenny SPR19/1454 Page 2 August 5, 2019 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Rice's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998); see also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Rice may wish to consider another means of seeking to obtain any existing responsive records. Tlte Office's June 251 response " In its June 25, 2019 response, the Office asserts that it" ... cannot provide the records [Mr. Rice] seek[ s] nor can [it] confirm that [the Office] is in possession of specific records." The Office explains that "[s] ince [Mr. Rice] requested records related to a specific prosecution for a specific crime by a specific individual, any response by [the Office] that [it] affomatively possesses the items [Mr. Rice] seek[s] will violate G.L. c. 6. Section 167 (CORI statute) which states that records and data related to an identifiable individual and that related to the nature or disposition of a criminal charge, an arrest, pre-trial proceeding, or other judicial proceedings are not public records." The Office posits that as an agency that prosecutes crimes," ... confirmation that [it] possesses such records itself would be in violation of the CORI statute .... Similarly detailing

Jessica Kenny SPR19/1454 Page 3 August 5, 2019 what reports, if any, [the Office] possess[es] related to the specific information [Mr. Rice] seek[ s] will provide information regarding the nature of a criminal charge, especially since [Mr. Rice's] requests are specific to a particular defendant, victim and crime scene." Exemption (a) Exemption (a), lmown as the statutory exemption, permits the withholding ofrecords that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a). A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. It should be noted that there has been an update to the definition of CORI. The current definition of CORI is as follows: "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 il1for111ation recorded in criminal proceedings that are not dismissed before arraignment. Criminal offenderrecord information shall not include evaluative information, statistical and analytical repmis and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information

Jessica Kenny SPR19/1454 Page 4 August 5, 2019 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). Burden of specificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § lO(b)(iv) (written response must "identify any records, categories ofrecords or portions ofrecords 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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. In my June 13th determination, I indicated that it was unclear from the Office's response if it possessed responsive records and directed the Office to identify the records it possesses that are responsive to Mr. Rice's request. Despite the Office's asse1iion that it" ... cannot provide the records [Mr. Rice] seek[ s] nor can [it] confirm that [t he Office] is in possession of specific records, [because] confirmation ... would be in violation of the CORI statutes[,]" I find the Office has not met its burden under the Public Records Law. As indicated above, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 CMR 32.06(3)(c)(4). Therefore, I find the Office must identify the record(s) it has in its possession that it is withholding from disclosure under Exemption (a). Also, in my June 13th determfoation, I indicated that the Office had not met its burden to withhold responsive records under Exemption (a). In its response, the Office claims that "[s]ince [Mr. Rice] requested records related to a specific prosecution for a specific crime by a specific individual, any response by [the Office] that [it] affirmatively possesses the items [Mr. Rice] seek[s] will violate G.L. c. 6. Section 167 (CORI statute) which states that records and data related to an identifiable individual and that related to the nature or disposition of a criminal charge, an arrest, pre-trial proceeding, or other judicial proceedings are not public records." Based on its response, I find the Office has not met its burden to demonstrate how the requested records are exempt under the CORI Act; specifically, it is unclear how th~ records constitute "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In light of this change to the definition of CORI, the Office must provide additional information that addresses this issue.

Jessica Kenny SPRl 9/1454 Page 5 August 5, 2019 Unique right ofa ccess In its June 25th response, the Office asserts that Mr. Rice has a unique right of access to the records. The Office indicates that "[r]ule 30 contemplates a defendant's access to post conviction discovery and includes the showing to be made and the procedure by which to request the items [Mr: Rice] seek[s]." The Office further indicates that "[t]his rule also acts as a safeguard by permitting a trial judge to implement a protective order where necessary to balance the needs of the defendant and his attorney to appropriately litigate post-conviction matters and the other considerations regarding the release of this type of sensitive material." In his appeal petition, Mr. Rice states that "[the Office] claims the public records can be attained by filing a Rule 30 Motion for a New Trial. Hence a Rule 30 Motion for A New Trial was filed on November 4, 2002, in Brockton Superior Court and denied without either a hearing or post-trial discovery on February 3, 2013 by trial judge ... Hely which the [Office] was fully aware of prior to their frivolous 211 d reply .... " Mr. Rice further claims, "[t]he trial judge simply exercised his unbiased discretion not to furnish me with discovery on this said print issue! ... " In light of the information prov1ded in Mr. Rice's appeal petition, I find that his ability to obtain responsive records through a discovery motion is unlike statutory provisions that grant requestors 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 Office has not demonstrated that Mr. Rice has a unique right to access these records that precludes him from pursuing an appeal with this office. See 950 C.M.R. 32.08(1)(a). Conclusion Accordingly, the Office is ordered to provide Mr. Rice with a response to the request, 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: Jordan M. Rice