Christina Andrade v. Plymouth District Attorney's Office (SPR 20220229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 14, 2022 SPR22/0229 Jennifer Cipolletti, Esq. Assistant District Attorney Records Access Officer Plymouth County District Attorney’s Office 166 Main Street Brockton, MA 02301 Dear Attorney Cipolletti: 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 17, 2021, Christina Andrade requested certain complaint, indictment, and disposition data from April 23, 2018 onwards for three criminal charges. The Office provided a response and redacted records on January 21, 2022. Unsatisfied with the Office’s response, Attorney Erkan petitioned this office and this appeal, SPR22/0229, 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. 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. 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

Jennifer Cipolletti, Esq., RAO SPR22/0229 Page 2 February 14, 2022 The Office’s January 21st Response In its January 21, 2021 response, the Office cited the Criminal Offender Record Information (CORI) Act, as operating under Exemption (a), for the redactions of requested records. 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 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

Jennifer Cipolletti, Esq., RAO SPR22/0229 Page 3 February 14, 2022 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 21st response, the Office stated, “[d]ocuments with redactions will have a redaction log appended to the end of the document. The log will identify the exemptions that apply. The document disclosed has the names of defendants and docket numbers redacted. Per Att'y Gen. v. Dist. Att'y for Plymouth Dist., 484 Mass. 260, 262, 141 N.E.3d 429, 432 (2020), disclosure of these would be specifically or by necessary implication exempted from disclosure under the CORI act if the individuals whose cases were tracked by this data could be directly or indirectly identified, because a criminal history of these individuals could then be compiled from this data that may be more extensive than what members of the public are permitted to obtain under the CORI act.” Based on the Office January 21st 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 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).

Jennifer Cipolletti, Esq., RAO SPR22/0229 Page 4 February 14, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Murat Erkan, Esq. Christina Andrade