Christina Andrade v. Berkshire District Attorney's Office (SPR 20213323)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 4, 2022 SPR21/3323 Richard Dohoney, Esq. Records Access Officer Berkshire District Attorney’s Office 7 North Street Pittsfield, MA 01201 Dear Attorney Dohoney: I have received the petition of Christina Andrade appealing the response of the Berkshire 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: (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 3, 2021, denying access to the responsive records pursuant to the Criminal Offender Records 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, SPR21/3323, 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

Richard Dohoney, Esq. SPR21/3323 Page 2 January 4, 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 3rd response In its November 3, 2021 response, the Office states that the records “. . . are protected under Criminal Offender Records Information M.G.L. c. 4, § 7(26)(a); G. L. c. 6, §§167A, 172.” 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.

Richard Dohoney, Esq. SPR21/3323 Page 3 January 4, 2022 The Office’s response did not contain the specificity required in a denial of access to public records. Instead, the Office merely cites Exemption (a) and the CORI statute, without any further explanation as to the exemption’s applicability to the requested records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find the Office has not satisfied its burden in responding to this records request. The Office is advised that 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 and its Regulations. 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