Murat Erkan, Esq. v. Norfolk County District Attorney's Office (SPR 20220506)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2022 SPR22/0506 Meagan Monahan, Esq. Assistant District Attorney Norfolk County District Attorney’s Office 45 Shawmut Road Canton, MA 02021 Dear Attorney Monahan: I have received the petition of Murat Erkan, Esq. of Erkan & Associates, on behalf of Christina Andrade, appealing the response of the Norfolk County District Attorney’s Office (Office/NDAO) 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 appeals This request was the subject of previous appeals. See SPR21/3321 Determination of the Supervisor of Records (January 10, 2022) and SPR22/0224 Determination of the Supervisor of Records (February 15, 2022). In my February 15th determination, I found the Office had not met its burden to withhold docket numbers under the Criminal Offender Record Information (CORI) statute, as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). The Office provided a further response on February 28, 2022. Unsatisfied with the Office’s response, Attorney Erkan petitioned this office and this appeal, SPR22/0506, was opened as a result. 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

Meagan Monahan, Esq. SPR22/0506 Page 2 March 16, 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. The Office February 28th response In its February 28, 2022 response, the Office explains, “[a]s of this date, you are in possession of the NDAO’s DAMION data pertaining to the charges of manslaughter with operating under the Influence . . .; motor vehicle homicide . . .; and leaving the scene of personal injury and death . . . from 2018 through December 2021. This data includes the internal identification number for each individual defendant. If the NDAO were to provide you with the requested docket numbers, you would be able to look up the individual defendant’s name and link that person to the NDAO’s internal identification number. Should you then request the NDAO’s DAMION database or are already in possession of the NDAO’s DAMION database, you would be able to compile that individual’s criminal history within Norfolk County. See Plymouth District, 484 Mass. at 268 Once a person in possession of the requested database (‘ knows the name of the criminal defendant from the docket number, that person would be able to link that name to the defendant’s internal identification number -- which is one of the twenty- three categories of information requested. The database could then be searched for all cases with that same defendant identification number, and a criminal history of the defendant could be compiled. ’).” The Office further explains, “[t]he SJC has acknowledged that record holders cannot consider requests in a vacuum, but must consider whether the release of additional information would necessarily lead to a violation of the law. Boston Globe Media Partners, LLC v. Dep’t of Pub. Health, 482 Mass. 427, 429 (2019) (‘With respect to exemption (a), the judge on remand should make factual findings about the extent to which the indices requested here could be compared against later-requested indices to reveal information protected from public disclosure by statute. The judge should then determine whether the risk of revealing such information brings the requested indices within the scope of exemption (a).’). Where you are in possession of the defendants’ internal identification numbers, docket numbers would act as a ‘key to the castle’ and permit you to ‘cobble together something akin to a Statewide criminal history[.]’ Plymouth

Meagan Monahan, Esq. SPR22/0506 Page 3 March 16, 2022 District, 484 Mass. at 268; 272, n. 9.” The Office contends, “[a]ny individual in possession of the DAMION dataset provided to you; the NDAO’s entire DAMION dataset; and the requested docket numbers could readily compile an individual’s criminal history within Norfolk County. . . . Irrespective of your possession of the NDAO’s DAMION data for these three charges, your request for these charges’ docket numbers from 2018 through December 2021 is still not sufficiently narrowed such that this data in of itself would not reveal criminal offender record information. Reviewing the data that is in your possession, you will see that there is an individual (identified by this person’s internal identification number) who has two separate entries within your dataset. This demonstrates that your request will necessarily reveal an individual’s criminal history in violation of the Criminal Offender Record Information Act. G.L. c. 6, § 167.” 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. 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

Meagan Monahan, Esq. SPR22/0506 Page 4 March 16, 2022 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. Despite the Office’s response, I find it has not met its burden to withhold the docket numbers of the narrow scope of this request under Exemption (a) and CORI under Globe Newspaper Co. v. Dist. Attorney for the Middle Dist., 439 Mass. 374 (2003). See Middle Dist., 439 Mass. at 385 (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.”). Conclusion Accordingly, the Office is ordered to review the records, redact where necessary, and provide Attorney Erkan with the responsive records, 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: Murat Erkan, Esq.