Christina Andrade v. Middlesex County District Attorney's Office (SPR 20213322)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 10, 2022 SPR21/3322 Kim Gouveia Middlesex County District Attorney’s Office 150 Commonwealth Avenue Woburn, MA 01801 Dear Ms. Gouveia: I have received the petition of Christina Andrade appealing the response of the Middlesex 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 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 October 28, 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, SPR21/3322, 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 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

Kim Gouveia SPR21/3322 Page 2 January 10, 2022 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 October 28th response In its October 28, 2021 response, the Office indicates “. . . the names of criminal defendants and associated docket numbers for criminal cases charged under specific statutes – is barred from disclosure by this Office. Specifically, the information you seek is exempt from public disclosure pursuant to exemption (a) (statutory) of the Public Records Law, M.G.L. c. 4, § 7, cl. twenty-sixth, as it constitutes Criminal Offender Record Information (CORI). . . M.G.L. c. 6, § 167.” The Office contends, “[b]ecause providing the defendant names and docket numbers for the requested cases would allow for the reconstruction of individual defendants’ criminal histories in violation of the CORI statute, we are barred by law from providing you with the specific information requested. M.G.L. c. 6, § 178 (imposing criminal penalties for the knowing communication of CORI not in accordance with law); see Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 272 (2020) (barring from disclosure under CORI law docket numbers compiled as part of request for database of cases where doing so could lead to improper dissemination of criminal history about identifiable individuals).” The Office provided a link to de-identified information from its DAMION case management system concerning criminal cases prosecuted within its jurisdiction. 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

Kim Gouveia SPR21/3322 Page 3 January 10, 2022 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. 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

Kim Gouveia SPR21/3322 Page 4 January 10, 2022 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 October 28th response, I find it has not met its burden to explain how this 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. 374, 385 (2003). 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 reconstruction of individual defendants’ criminal histories in violation of the CORI Act. 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