Christina Andrade v. Norfolk County District Attorney's Office (SPR 20213321)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 10, 2022 SPR21/3321 Meagan Monahan, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Monahan: I have received the petition of Christina Andrade appealing the response of the Norfolk County District Attorney’s Office (Office/NDAO) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 20, 2021, Ms. Andrade requested the following: (a) criminal complaints with docket numbers, (b) indictments with docket numbers, (c) disposition data regarding (a) and (b) above in which the Commonwealth charged any of the following offenses from April 23, 2018 to present: 1: Manslaughter by MV (G.L. c. 265 s 13 1/2) 2: Homicide by MV (G.L. c. 90 s 24G) 3: Leaving the scene of an accident, death resulting (G.L. c. 90 s 24(2)(a 1/2)(2)). The Office responded on November 4, 2021, denying access to the responsive records pursuant to the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Office’s response, Ms. Andrade petitioned this office and this appeal, SPR21/3321, 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 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

Meagan Monahan, Esq. SPR21/3321 Page 2 January 10, 2022 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); 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 November 4th response In its November 4, 2021 response, the Office states “[t]he records that you have requested, a compilation of actual complaints and indictments with docket numbers plus the disposition data, constitutes criminal offender record information which is ‘specifically or by necessary implication exempted from disclosure’ under the Criminal Offender Record Information Act. See G.L. c. 6, §§ 167-178B; see also G.L. c. 4, § 7 (26)(a) . . .; G.L. c. 6, § 167 (limiting public dissemination of criminal offender record information).” The Office explains, “[t]he disposition records necessarily include several categories of data contained within the NDAO’s internal database, DAMION, including: case filing date, case number, charge code, charge description, disposition code, and sentence type. This data, in combination with the requested complaints, indictments and docket numbers, could result in the identification of the individuals who have had their cases tracked by the requested records; the identification of these individuals, in combination with the data contained within the records, could result in the compilation of criminal offender record information which would exceed that which would customarily be available to the public. See Attorney General v. District Attorney for Plymouth District, 484 Mass. 260 (2020) (docket numbers when combined with other DAMION categories are exempt from disclosure by necessary implication of the CORI act). Contrast Globe Newspaper Co. v. District Attorney for the Middle District, 439 Mass. 374 (2003) (docket numbers held to be public record where public records request was narrowly made and would not permit the requestor to compile an individual’s criminal history).” The Office indicated that it could however, provide certain de-identified information from its DAMION database if Ms. Andrade wishes to receive this information. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that

Meagan Monahan, Esq. SPR21/3321 Page 3 January 10, 2022 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. CORI is currently defined as: [R]ecords 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167.

Meagan Monahan, Esq. SPR21/3321 Page 4 January 10, 2022 Current appeal In her appeal petition, Ms. Andrade states that she is “. . . seeking docket numbers regarding motor vehicle homicide offenses - a very narrow subset of criminal offenses - the Plymouth case is inapposite.” Ms. Andrade contends that her request “is controlled by Globe Newspaper Co. v. District Attorney for the Middle Dist., 439 Mass. 374, 382 (2003) (Middle District), which held that a docket number ‘falls squarely’ within the definition of ‘chronologically maintained court records of public judicial ... proceedings’ that are ‘public records’ under G. L. c. 6, § 172 (m), and must be disclosed[.]” Ms. Andrade raises the argument that “Plymouth Court distinguishes Middle District because there, ‘the Globe’s public records request was far more narrow -- it only requested docket numbers associated with a specific type of case and a specific type of defendant. That request would reveal information about a defendant regarding a specific offense but, in contrast with the data request in this case, it would not permit the requester, armed with these docket numbers, to compile a criminal history of these defendants based on the other information contained in the data request.’ Plymouth, at 273.” Based on the Office’s November 4th response, I find it has not met its burden to explain how the requested information falls within the definition of CORI. In Middle Dist., the Supreme Judicial Court concluded that “[d]ocket numbers of criminal cases prosecuted in public judicial proceedings, correlated with information that is also available from court or other public records, but not correlated with defendant-specific information, are public records under G.L. c. 4, § 7, Twenty-sixth, subject to mandatory disclosure under G.L. c. 66, § 10, and their disclosure is not prohibited by the CORI statute.” See Middle Dist., 439 Mass. at 385. Consequently, it is unclear how the narrow scope of this request would allow docket numbers to be withheld under Exemption (a) and CORI under Middle Dist.. It is additionally uncertain how the narrow scope of this request could result in the compilation of a criminal history of an identifiable individual. The Office must clarify these issues. Conclusion Accordingly, the Office is ordered to provide Ms. Andrade 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: Christina Andrade