Saurabh Datar v. Worcester County District Attorney's Office (SPR 20211723)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2021 SPR21/1723 Lindsay Corcoran Worcester County District Attorney’s Office Worcester County Courthouse 225 Main Street, G301 Worcester, MA 01608 Dear Ms. Corcoran: I have received the petition of Saurabh Datar of WBUR appealing the response of the Worcester County District Attorney’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 11, 2021, Mr. Datar requested the following records: [1] Spreadsheet that details and includes and tracks forfeited funds by each police department in Worcester County for the years 2017, 2018, and 2019 [2] Database, spreadsheet, text file or machine readable file of the Access Forfeiture database related to civil forfeiture cases filed in the years 2017, 2018, and 2019. I am requesting records with fields including, but not limited to, the name of person whose money was seized, amount, date of seizure, police department, civil forfeiture case, and underlying criminal case number for the seizure[.] The Office provided a response on July 1, 2021, including responsive records in redacted form pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Office’s response, Mr. Datar petitioned this office and this appeal, SPR21/1723, 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, § 10A(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

Lindsay Corcoran SPR21/1723 Page 2 July 26, 2021 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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Office’s July 1st response In its July 1, 2021 response, the Office enclosed redacted records and indicated that “[d]efendant’s names and docket numbers have been removed from the database as they constitute ‘criminal offender record information’ as defined by G.L. c. 6, § 167. Pursuant to G.L. c. 6, § 172, such information is exempt from disclosure under the public record law. G.L. c. 4, § 7(26)(a).” Exemption (a) Exemption (a), known as the statutory exemption, 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 Att’y 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.

Lindsay Corcoran SPR21/1723 Page 3 July 26, 2021 The Office’s response did not contain the specificity required in a denial of access to public records. Instead, the Office’s response merely states that “defendant’s names and docket numbers” were withheld under Exemption (a) without any further explanation as to the exemption’s or statute’s applicability to the responsive records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § 10(b)(iv). Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, it remains unclear how the CORI statute specifically or by necessary implication permits it to withhold the redacted information from disclosure. The Office must clarify this issue. Conclusion Accordingly, the Office is ordered to provide Mr. Datar with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Saurabh Datar