Stephen Stich v. Middlesex District Attorney's Office (SPR 20212111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2021 SPR21/2111 Daniel M. DeBlander, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Attorney Stephen Stitch, on behalf of Sessi Blanchard, appealing the response of the Middlesex 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 December 21, 2020 and on April 19, 2021, Ms. Blanchard requested numerous categories of records relating to the investigation into the death of a named individual and the subsequent criminal case. The Office responded to both requests on June 2, 2021, claiming to withhold numerous responsive records pursuant to Exemptions (a), (c), and (d) of the Public Records Law, and stating it was withholding grand jury transcripts. Unsatisfied with the Office’s response, Attorney Stitch appealed and this case 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 agency 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); 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 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

Daniel M. DeBlander, Esq. SPR21/2111 Page 2 September 1, 2021 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. Current Appeal In his appeal petition, Attorney Stitch first contends that the “Office’s reliance on Exemption (a) and the CORI statute is incorrect. Publicly filed motions are not exempt even if they do constitute CORI.” He further argues that “motions filed with the court do not even satisfy the definition of ‘criminal offender record information’ in G.L. c. 6, § 167, fifth paragraph. That term applies only to records and data ‘compiled by a Massachusetts criminal justice agency.’” Attorney Stitch goes on to argue that “‘if the item sought is a court record that could be obtained from the clerk’s office, it is a public record, and it may be obtained from any other government official who also happens to have a copy of that same public record.’ Globe Newspaper Co. v. DA for the Middle Dist., 439 Mass. 374, 383 (2003).” Second, Attorney Stitch contends that “the Office did not even cite an exemption to justify withholding the grand jury materials. On a section of its website providing guidelines to requesters, the Office appears to state that all grand jury materials are exempt under Exemptions (a) and (f), and Mass. R. Crim. P. 5(d). These bare citations, however, are insufficient to sustain the Office’s burden.” He goes on to argue the following: Here, all the interests that could favor grand jury secrecy range from completely inapplicable to seriously attenuated. Because the grand jury deliberations are complete, disclosure would not create any extraneous influence, or allow the intimidation or subornation of witnesses. Because the defendant was indicted for first-degree murder, disclosing that he was investigated would not cause him any additional notoriety. And disclosing twenty-five year-old grand jury materials would not significantly deter full and free disclosure of information or grand jury deliberation. In contrast, the information is vital to understanding the history of injustice against the trans community in the Commonwealth. The Office’s June 2nd Response In its June 2, 2021 response, the Office claims to withhold numerous records contained in a case file. The Office cites Exemption (a) and M.G.L. c. 66, §§ 167, 178, for withholding numerous motions filed with the court, and also claims to withhold Grand Jury transcripts and minutes. 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

Daniel M. DeBlander, Esq. SPR21/2111 Page 3 September 1, 2021 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, 154 (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. 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 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 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, 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.

Daniel M. DeBlander, Esq. SPR21/2111 Page 4 September 1, 2021 G. L. c. 6, § 167. As noted by Attorney Stitch, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Under Exemption (a), the Office states that it is withholding “[n]umerous motions filed with the court and captioned under the name and docket number for the specifically identified criminal defendant associated with this matter.” The Office makes the following argument for withholding the responsive motions: Such records are barred from disclosure by this Office as records which are “specifically . . . exempted from disclosure by statute.” M.G.L. c. 4, s. 7(26)(a). Specifically, this Office is barred from publicly disclosing such court filings under Massachusetts’ Criminal Record Information (CORI) statutes. See M.G.L. c. 6, ss. 167, 178. CORI is defined in relevant part as “records and data in any communicable form compiled by a Massachusetts criminal justice agency and 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 . . . sentencing, incarceration, rehabilitation, or release.” M.G.L. c. 6, s. 167; see also 803 C.M.R. 2.03. Section 178 makes the unauthorized release of CORI information a criminal offense. Based on the Office’s response, and the applicable statutes, it is unclear how copies of motions filed with a court are among those contemplated by the CORI statute. The Office must clarify this. Grand Jury Minutes Without citing a statutory exemption, the Office states it is withholding “[g]rand jury testimony transcripts.” The Office goes on to argue the following: [The] Office will not release grand jury minutes, grand jury exhibits, or any other documents associated with grand jury proceedings in an underlying criminal matter. The secrecy of grand jury proceedings is “deeply rooted in the common law of the Commonwealth.” WBZ-TV4 v. Dist. Atty. for the Suffolk Dist., 408 Mass. 595, 599 (1990); Commonwealth v. Harris, 231 Mass. 584, 586 (1919); Commonwealth v. Mead,

Daniel M. DeBlander, Esq. SPR21/2111 Page 5 September 1, 2021 78 Mass. (12 Gray) 167, 170 (1858); Commonwealth v. Hill, 65 Mass. [11 Cush.] 137, 140 (1853). Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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, 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. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office’s response concerning grand jury minutes did not contain the specificity required in a denial of access to public records. Although the Office cited extensive case law, it is unclear whether the Office is withholding the grand jury minutes pursuant to Exemption (f) or some other exemption of the Public Records Law. The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Attorney Stitch with a response to his 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stephen Stich, Esq.