Murat Erkan, Esq. v. Suffolk County District Attorney's Office (SPR 20220513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 16, 2022 SPR22/0513 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 Murat Erkan, Esq. of Erkan & Associates, on behalf 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 appeals This request was the subject of previous appeals. See SPR21/3327 Determination of the Supervisor of Records (January 10, 2022) and SPR22/0223 Determination of the Supervisor of Records (February 14, 2022). In my February 14th 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 March 2, 2022. Unsatisfied with the Office’s response, Attorney Erkan petitioned this office and this appeal, SPR22/0513, 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

Claudia Buruca SPR22/0513 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. 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 March 2nd response In its March 2, 2022 response, the Office asserts, “[i]t remains our . . . 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. This point was further litigated in Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260 (2020) (‘Plymouth District’).” The Office explains, “[i]n addition to our concern that you have submitted multiple public records requests to other district attorneys, we are also concerned with the prevalence of public DAMION information. The excel spreadsheet provided to you on October 29, 2021 included a category called ‘ID_CS.’ This is DAMION’s unique person identifier and remains constant throughout every DAMION data set that our Office produces. Our Office has released large DAMION data sets to the public several times, including all of DAMION in its entirety through January 2022. The unique person identifier would match the ID_CS in these other public DAMION sets and allow you to compile a person’s criminal history. Thus, Plymouth District remains the prevailing case law in question.” The Office posits, “. . . based on our understanding of Plymouth District, the full sets of DAMION data minus docket numbers are subject to public records requests and have in fact been released, the exemption of docket numbers from public records is all the more necessary in order to comply with the spirit of the CORI legislation. . . . The link to a person’s other cases exists in an unidentifiable form in these DAMION sets. The docket number subsequently connects this criminal history to an individual’s name through the Massachusetts Trial Court

Claudia Buruca SPR22/0513 Page 3 March 16, 2022 website (MassCourts.org), as the website is only searchable to the public via docket number.” The Office argues, “[y]ou further contend that ‘[w]hile a person so inclined may then take the person’s name and send a public records request to every courthouse in the Commonwealth (or obtain that information via the online portal), nothing in the law prohibits them from doing so, and nothing in the docket number facilitates their doing so.’ . . . The docket number facilitates this process by linking unidentifiable criminal histories found within DAMION data sets to names found on the Trial Court’s public website.” 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 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

Claudia Buruca SPR22/0513 Page 4 March 16, 2022 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.