Christina Andrade v. Worcester County District Attorney's Office (SPR 20220681)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2022 SPR22/0681 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 Attorney Murat Erkan, on behalf of Christine Andrade, 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, Ms. Andrade requested certain complaint, indictment, and disposition data from April 23, 2018 onwards for three criminal charges. Previous Appeals This request was the subject of a previous appeal. See SPR21/3319 Determination of the Supervisor of Records (January 4, 2022); SPR22/0225 Determination of the Supervisor of Records (February 14, 2022). In my February 14th determination, I ordered the Office to clarify its claims under Exemption (a) for withholding docket numbers. Subsequently, the Office responded on March 3, 2022. Unsatisfied with the Office’s response, Attorney Erkan appealed, and this case 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 agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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, Esq. SPR22/0681 Page 2 April 5, 2022 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. Att’y 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’s March 3rd Response In its March 3, 2022 response, the Office reiterates its claims for withholding docket numbers under Exemption (a). 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 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,

Mark Relation, Esq. SPR22/0681 Page 3 April 5, 2022 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). In its March 3rd response, the Office argues the following: In her request, Ms. Andrade called for twenty-three categories of data, including both docket numbers and “Defendant ID Num (Internal tracking number used by DA’s office to identify defendant).” Defendant ID numbers are defendant-specific information. This means that here, in Ms. Andrade’s request which calls for docket numbers correlated to defendant-specific ID numbers, the reasoning in Globe does not apply. Instead, this request falls under Att’y Gen. v. Dist. Att’y for the Plymouth Dist., 484 Mass. 260 (2020), which reviewed a request for the exact same categories of information. For the reasons outlined in my January 19, 2022 letter, that case prohibits disclosure of docket numbers in a request for these categories of data. As Ms. Andrade’s request calls for the exact same categories of data as in Plymouth, that same reasoning applies and so docket numbers cannot be disclosed here without violating the CORI statute and undermining

Mark Relation, Esq. SPR22/0681 Page 4 April 5, 2022 the sealing and expungement statutes. Based on the Office’s March 3rd response, although the Office may properly redact defendant ID numbers pursuant to Exemption (a) and CORI, I find the Office has not met its burden to explain how the docket numbers may be withheld. See Globe Newspaper Co. v. Dist. Att’y for the Middle Dist., 439 Mass. 374, 385 (2003) (“request for docket numbers correlated with information that is not in the court’s records or any other public record effectively calls for the release of information that would not be a public record”); see also Att’y Gen. v. Dist. Att’y for the Plymouth Dist., 484 Mass. 260 (2020). Conclusion Accordingly, the Office is ordered to review the records, redact where necessary and provide the responsive records to Attorney Erkan, 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Murat Erkan, Esq.