Christina Andrade v. Suffolk County District Attorney's Office (SPR 20220223)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0223 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)). Previous appeal This request was the subject of a previous appeal. See SPR21/3327 Determination of the Supervisor of Records (January 10, 2022). In my January 10th determination, I found the Office had not met its burden to withhold and/or redact portions of the records under Exemptions (a), (d), and (f) of the Public Records Law. The Office provided a further response on January 25, 2022. Unsatisfied with the Office’s response, Ms. Andrade petitioned this office and this appeal, SPR22/0223, was opened as a result. In her appeal petition, Ms. Andrade notes that the appeal is limited to the withheld docket numbers. 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 SPR22/0223 Page 2 February 14, 2022 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 or municipality 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 January 25th response In its January 25, 2022 response, the Office asserts “. . . it remains our office’s position that docket numbers in connection to DAMION data requests are not subject to disclosure under exemption (a) of the public records law ‘by necessary implication’ of the CORI act.” The Office cites Att’y Gen. v. District Attorney for the Plymouth District, 484 Mass. 260 (2020). The Office explains, “[t]he excel spreadsheet that our office provided to you on October 29, 2021 included a category called ‘ID_CS.’ This is DAMION’s unique person identifier. Armed with this category, and with these data sets, you can easily circumvent DCJIS and compile a person’s CORI information. Additionally, while investigations and prosecutions related to motor vehicle homicides do indeed contain a narrow subset of cases, it is in the nature of this type of crime that individuals are less subject to recidivism. As such, the spreadsheet released on October 19, 2021 contains the entire criminal history of five individuals. If we were to release the docket numbers, you could easily search via docket number on MassCourts.org, a public website, and discover the names and entire criminal history of those individuals. Indeed, using the docket search on MassCourts.org, you could easily look up the full names of all individuals listed on the spreadsheet. That would again easily circumvent DCJIS and CORI protections. For these reasons, our Office continues to hold the position that we must withhold the docket numbers.” Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that

Claudia Buruca SPR22/0223 Page 3 February 14, 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. Exemption (f) Exemption (f) permits the withholding of:

Claudia Buruca SPR22/0223 Page 4 February 14, 2022 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. The Office also withheld the docket numbers of ten open cases under Exemption (f), indicating that if it “. . . release[s] the docket numbers for these cases . . . you could easily look up the full names of the individuals on the spreadsheet and match the listed charges on the spreadsheet to the charges on each criminal complaint. Thus, the fact pattern of each complaint, even in a redacted form, could be tied to each individual’s name. Public dissemination of these materials could potentially interfere with any witnesses’ ability to testify based on actual recollection. Moreover, the potential jury pool could be tainted by publication of details of each incident. Thus, this Office declines to release them at this time.” Based on the Office’s response, it remains unclear how the narrow scope of this request, which seeks three charges relating to motor vehicle homicides prosecuted from April 23, 2018 to present, would allow docket numbers to be withheld under Exemption (a) and CORI under Middle Dist.. See Middle Dist., 439 Mass. 374, 385 (2003) (concluding 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.”). Consequently, I find the Office has not met its burden to withhold the docket numbers under CORI, as it operates through Exemption (a) of the Public Records Law. It is additionally uncertain how the docket numbers could be withheld from disclosure under Exemption (f). Particularly, the Office did not demonstrate that the docket numbers of open cases are investigatory materials, nor how disclosure 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).” The Office must further clarify these

Claudia Buruca SPR22/0223 Page 5 February 14, 2022 matters. 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