Richard Villar v. Essex County District Attorney's Office (SPR 20192157)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

November 5, 2019 SPR19/2157 Kristen W. Jaing, Esq. Assistant District Attorney Essex County District Attorney’s Office 10 Federal Street Salem, MA 01970

Dear Attorney Jaing:

I have received the petition of Richard Villar appealing the response of the Essex County District Attorney’s Office (DAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.LR. 32.08(1). Specifically, Mr. Villar requested “Court transcripts from dates 8/17/06, | 9/25/06, 9/9/11, and 10/28/11. Any and all related matters from Shauna Harrington in the above case.”

Prior Appeal

This request was the subject of previous appeals. See SPR 19/1891 Determination of the Supervisor of Records (September 27, 2019). In my September 27" determination I ordered the DAO to provide Mr, Villar with a supplemental response addressing whether it possessed any records responsive to his request. The DAO responded on October 7, 2019, producing some responsive records and withholding others. Unsatisfied with the response he had received from the DAO, Mr. Villar petitioned this office and this appeal, SPR 19/2157, was opened as a result.

Current Appeal

Mr. Villar’s petition identifies two categories of records he is seeking: court transcripts pertaining to an identified individual, as well as this individual’s Board of Probation record.

Court Transcripts

In his request, Mr. Villar sought “court transcripts from dates: 8/17/06, 9/25/06, 9/9/11, and 10/28/11” pertaining to a certain case. In its October 7, 2019 response, the DAO states that “it appears that these dates correspond with the following events: an arraignment...a pre-trial hearing...a default removal hearing...and a pre-trial hearing...” The DAO further states that “[i]n the ordinary course, transcripts for these types of non-substantive court matters would not have

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

Kristen W. Jaing, Esq. SPR19/2157 Page 2 November 5, 2019

been ordered by this Office, and this Office’s electronic case management records do not indicate that any transcripts were requested or received for this case.”

Under the Public Records Law, the Records Access Officer (RAO) is not required to create any record(s) in response to a public records request. The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26); see also 32 Op. Att’y Gen. 157, 165 (May 18, 1977). However, the RAO shall identify any records that are not within its possession, custody or control of the public record sought. See G. L. c. 66, § 6A(d); see also 950 C.MLR. 32.06(3)(c)(2).’ .

Accordingly, whereas the DAO has informed Mr. Villar that it does not possess any transcripts for the requested dates, | find it has met its burden in responding to this portion of his request.

Board of Probation Record

In its October 7'" response, the DAO states that “[t]here are additional records in the file, particularly, Ms. Harrington’s Board of Probation record, which this office may not disclose as CORI absent confirmation that Ms. Harrington is deceased by way of a certified copy of her death certificate.”

Exemption (a)

Exemption (a) permits the withholding of records 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

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individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities.

The CORI Act

It should be noted that there has been an update to the definition of Criminal Offender Record Information (CORI). Section 3 of Chapter 69 of the Acts of 2018. 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 information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information 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).

The CORI Act additionally provides that “[t]he restrictions on the dissemination of criminal record information as provided in this chapter shall cease to exist at the death of the

individual for whom a criminal justice agency has maintained criminal offender record information.” G. L. c. 6, § 178B.

Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass, at 511.

In his request, Mr. Villar included a copy of an obituary indicating that Shauna Harrington of Nashua, New Hampshire is deceased. The DAO has not produced any evidence disputing this conclusion. In light of Mr. Villar’s petition, it is unclear how the withheld records fall under the CORI Act, specifically, whether the restrictions on the dissemination of CORI still apply to the subject of the requested records, Shauna Harrington. Accordingly, I find that the DAO has not met its burden to withhold the identified records.

- Kristen W. Jaing, Esq. SPR19/2157 Page 4 November 5, 2019

Conclusion

Accordingly, the DAO is ordered to provide a response to Mr. Villar in accordance with the Public Records Law, its Access Regulation and this order within ten (10) business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us.

Sincerely,

Rebecca S. Koleeca. Musuol4

: Supervisor of Records ce: Richard Villar