Christina Andrade v. Suffolk County District Attorney's Office (SPR 20213327)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 10, 2022 SPR21/3327 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Christina Andrade appealing the response of the Suffolk 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 29, 2021, which included certain records. The Office also denied access to other portions of the records pursuant to the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a), as well as Exemptions (d) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (d), (f). Unsatisfied with the Office’s response, Ms. Andrade petitioned this office and this appeal, SPR21/3327, 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

Claudia Buruca SPR21/3327 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 October 29th response (a) Criminal complaints with docket numbers In its October 29, 2021 response, the Office states “[w]ith regards to your request for ‘(a) criminal complaints with docket numbers,’ the Office has identified nineteen cases in which the Commonwealth charged the requested offenses from April 23, 2018 to present. Ten of those cases remain open.” Citing Exemption (f), the Office asserts that “. . . it is [its] position that production of the records related to the ten cases are not in the public interest as it could jeopardize the active and ongoing investigations and would contravene any potential defendant’s constitutional right to a fair trial. Since the materials that you are asking for bear directly upon matters to which witnesses may testify, public dissemination of the materials could potentially interfere with any witnesses’ ability to testify based on their actual recollection. Moreover, the potential jury pool could be tainted by publication of details of the incident.” The Office further contends, “. . . materials concerning ongoing litigation are exempt from production under the public records law under G.L. c. 4, § 7(26)(d). See Lafferty v. Martha’s Vineyard Comm’n, 17 Mass. L. Rep 501 (Mass. Super. Ct. 2004). Accordingly, the records for those ten cases that fall within the ‘investigatory exemption’ to the public records law (G.L. c. 4, § 7, cl. 26(f)), and thus this Office declines to release those criminal complaints at this time.” Regarding the remaining nine closed cases, the Office provided a timeframe for the provision of the records and indicated a fee estimate would be provided if there is no further modification. Exemption (d) Exemption (d) allows the withholding of:

Claudia Buruca SPR21/3327 Page 3 January 10, 2022 inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7 (26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters ----------------------- used in the development of government policy are subject to disclosure). Based on the Office’s response, it is unclear how information that may already be in the public domain would taint the ongoing deliberative process. It is additionally uncertain whether the requested records contain any factual information that can be segregated from the responsive records, as Exemption (d) does not apply to such information. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by- case consideration” of whether disclosure “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90.

Claudia Buruca SPR21/3327 Page 4 January 10, 2022 Under Exemption (f), I find the Office did not sufficiently demonstrate how disclosing any segregable portion of the criminal complaints “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Office must produce any non-exempt, segregable portions of the responsive records. G. L. c. 66, § 10(a). (b) Indictments with docket numbers With regards to the above request, the Office indicates “. . . please be aware that grand jury materials are explicitly excluded from the category of public records under G.L. c. 4, § 7 (26)(a), (f); Mass. R. Crim. P. 5(d); G.L. c. 268, § 13D. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 225 (1979); WBZ-TV4 v. District Attorney for Suffolk Dist., 408 Mass. 595, 601-02 (1990).” Based on Ms. Andrade’s petition, it does not appear that she is appealing this portion of the Office’s response. (c) Disposition data regarding (a) and (b) above Regarding the above, the Office provided certain information but indicated that “. . . [t]he following information was redacted out of this production in accordance to public records law: Criminal Offender Record Information and any information obtained through the Criminal Justice Information Systems (including names of defendants and docket numbers) (G.L. c. 4, §7 (26) (a); G.L. c. 6, §§ 167A, 172; Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260 (2020)) . . .” 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

Claudia Buruca SPR21/3327 Page 5 January 10, 2022 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. 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 October 29th 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

Claudia Buruca SPR21/3327 Page 6 January 10, 2022 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.. The Office must clarify this issue. 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