Christina Andrade v. Worcester County District Attorney's Office (SPR 20220225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0225 Mark Relation, Esq. Assistant District Attorney/Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G-301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Murat Erkan, Esq. appealing the response of the Worcester 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, Christina Andrade requested certain complaint, indictment, and disposition data from April 23, 2018 onwards for three criminal charges. Previous appeal This request was the subject of a previous appeal. See SPR21/3319 Determination of the Supervisor of Records (January 4, 2022). The Office provided a response on January 19, 2022. Unsatisfied with the Office’s response, Attorney Erkan petitioned this office and this appeal, SPR22/0225, 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 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. 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

Mark Relation, RAO SPR22/0225 Page 2 February 14, 2022 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 19th Response In its January 19, 2021 response, the Office explained: This letter is in response to your January 4, 2022 order to clarify how Exemption (a) and the CORI statute allow for the withholding of docket numbers from disclosure in the context of Ms. Andrade's public records request. Based on the case law of Att'y Gen. v. Dist. Att'y for the Plymouth Dist., 484 Mass. 260 (2020) and Globe Newspaper Co. v. Dist. Atfy for the Middle Dist., 439 Mass. 374 (2003), as well as the Public Records Law the CORI statute, and the sealing and expungement statutes, disclosure of docket numbers in this request would allow Ms. Andrade and other requestors to make an end run around the CORI restrictions by allowing them to generate criminal histories of individuals through public records requests to prosecutors, and thereby obtain a more extensive criminal history than they would receive through a DCJIS query. Plymouth, at 269. Consequently, the docket numbers must be withheld. 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 Attorney 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

Mark Relation, RAO SPR22/0225 Page 3 February 14, 2022 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. CORI The current definition of criminal offender record information (CORI) is as follows: “Criminal offender record information,” records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In the January 19th response, the Office stated, “Globe Newspaper Co. holds that docket numbers, even though they are public records, nevertheless must be withheld when they inherently disclose or allow access to criminal offender record information protected by the CORI statute. Globe Newspaper Co., at 384-385. Plymouth, when analyzing a substantially identical request to Ms. Andrade's, illustrated how disclosure of docket numbers as part of that substantial database is such a case that would inherently disclose and give access to criminal offender record information protected by the CORI statute as well as undermine the purpose and efficacy of the sealing and expungement statutes. Plymouth, at 267-268, 270-271, 273-274. In this case, because Ms. Andrade's request is substantially identical to that in Plymouth, those same concerns and consequently that same analysis applies, prohibiting disclosure of docket numbers.”

Mark Relation, RAO SPR22/0225 Page 4 February 14, 2022 Ms. Andrade and Attorney Erkan argue in their appeal petition that the request was “a very narrow category of offenses -three charges relating to motor vehicle homicides prosecuted from April 23, 2018 to present.” The Office contends in the January 19th response that: While it is true that Ms. Andrade's request concerns only three criminal offenses instead of all criminal offenses, a period of approximately three years instead of all time, and it is unclear from the appeal whether she did in fact make identical requests to every district attorney's office in the Commonwealth as well as the Office of the Attorney General, her argument fails to take into account the fact that she or potentially any other individual has the right to make additional identical public records requests regarding other criminal offenses over other time periods to other offices. If her position were to be adopted, even if it were limited to three offenses and three years at a time, any determined and patient requestor would be able to use successive public records requests to compile criminal histories for any and all individuals in the Commonwealth in the manner described in Plymouth, as well as undermine every sealing and expungement of a criminal record moving forward. Furthermore, it would only take one such determined and patient requestor to do this and then publish their efforts in some widely available format, such as over the internet, for every Massachusetts citizen's criminal record to be freely available to the entire public for all time. Such an outcome clearly violates the express purpose of the CORI statute. Consequently, as the requested dataset here includes both docket numbers as well as the accompanying substantial database, Ms. Andrade's request is not sufficiently narrow as to prevent it from empowering her and others to access protected criminal offender record information and undermine the purpose of the sealing and expungement statutes in the same way as the court found in Plymouth. Based on the Office January 19th response, I find it has not met its burden to explain how this information falls within the definition of CORI. In Globe. v. Middle District, the Supreme Judicial Court concluded “[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 District 439 Mass. 374, 382 (2003). It is unclear how the narrowing of the scope of this request to three charges would allow docket numbers to be withheld under Exemption (a) and CORI under Globe v. Middle District. The Office must further clarify this. Conclusion Accordingly, the Office is ordered to provide Attorney Erkan with a response in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) business days. It is preferable to send an electronic copy of this response to this office at

Mark Relation, RAO SPR22/0225 Page 5 February 14, 2022 pre@sec.state.ma.us. Attorney Erkan may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Murat Erkan, Esq. Christina Andrade