Christopher P. Loreti v. Office of the Attorney General (SPR 20211857)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9, 2021 SPR21/1857 Lorraine A.G. Tarrow, Esq. Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of Christopher Loreti appealing the response of the Office of the Attorney General (AGO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 28, 2021, Mr. Loreti requested, “… documents concerning the disposition of the referenced case against four ambulance company executives.” The AGO responded on July 20, 2021. Unsatisfied with the AGO's response, Mr. Loreti petitioned this office and SPR21/1857 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). 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) (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 is based…”); 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). The AGO’s July 20th Response In its July 20th response, the AGO cited Exemption (a) to withhold the requested records. 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

Lorraine A.G. Tarrow, Esq. SPR21/1857 Page 2 August 9, 2021 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 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. The AGO cites G. L. c. 276, § 100A, operating through Exemption (a), to withhold the requested records. The statute states, in pertinent part, as follows: Any person having a record of criminal court appearances and dispositions in the commonwealth on file with the office of the commissioner of probation may, on a form furnished by the commissioner and signed under the penalties of perjury, request that the commissioner seal the file … The commissioner, in response to inquiries by authorized persons other than any law enforcement agency, any court, or any appointing authority, shall in the case of a sealed record or in the case of court appearances and adjudications in a case of delinquency or the case of a child in need of services which did not result in a complaint transferred to the superior court for criminal prosecution, report that no record exists. G. L. c. 276, § 100A. In the AGO’s response, the AGO explained, “[a]s … noted in our June 25, 2020 response to your request for these same records, the docket number for the case against Thomas Codair is 1184CR10406 and the resolution is available on the Masscourts website. Case lookup instructions are available at the [provided] … link[.] The cases against the remaining defendants remain ‘sealed’ and are therefore not available for public inspection. Accordingly, we are withholding records in our custody that may be responsive to your request … insofar as they

Lorraine A.G. Tarrow, Esq. SPR21/1857 Page 3 August 9, 2021 contain the dispositions of sealed cases, which are specifically exempted from disclosure by statute. See G.L. c. 276, § 100A.” Current Appeal In Mr. Loreti’s appeal, he states, “[t]he statute cited … G.L. c. 276, § 100A, does not apply to the AGO. It applies to those in an entirely different branch of state government, the Commissioner of Probation and the court system. There is no language in this statute to indicate that it also applies to the AGO, the only agency to which I made my records request, any more than it applies to my local newspaper.” Given that the requested records are sealed under G. L. c. 276, § 100A, which limits the dissemination of these records, these records are exempt by necessary implication pursuant to the second category of Exemption (a). Therefore, the AGO has met its burden in responding to this request under the Public Records Law. See G. L. c. 276, § 100A. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Loreti is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Christopher Loreti