Allison Jarmanning v. Suffolk County District Attorney's Office (SPR 20221030)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 17, 2022 SPR22/1030 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 Allison Jarmanning of WBUR 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 February 2, 2022, Ms. Jarmanning requested “docket numbers for the following charges prosecuted by the office since January 1, 2017: WIRETAP, UNLAWFUL c272 §99(C)(1) (including attempted wiretapping) WIRETAP, DISCLOSE CONTENTS OF c272 §99(C)(3) or (4).” Previous Appeal This request was the subject of a previous appeal. See SPR22/0941 Supervisor of Records Determination (May 3, 2022). In my May 3rd determination, I closed SPR22/0941 in light of the Office providing a response on April 22, 2022. Unsatisfied with the Office’s response, Ms. Jarmanning 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). 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 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 SPR22/1030 Page 2 May 17, 2022 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 April 22nd Response In its April 22, 2022 response, the Office states that it is withholding responsive docket numbers pursuant to Exemption (a) of the Public Records Law and the CORI Act. See G. L. c. 4, § 7(26)(a); 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 The current definition of criminal offender record information (CORI) is as follows:

Claudia Buruca SPR22/1030 Page 3 May 17, 2022 “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. 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). Under CORI, the Office cites Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260 (2020) and argues the following: Providing the docket numbers facilitates the circumvention of CORI protections by linking unidentifiable criminal histories found within DAMION datasets to names found on the Massachusetts Trial Court’s public website (MassCourts.org), which is only searchable to the public via docket number. As such, we decline to provide docket numbers in requests related to DAMION data. In her appeal petition, Ms. Jarmanning notes that she “only requested docket numbers for

Claudia Buruca SPR22/1030 Page 4 May 17, 2022 cases involving a limited number of charges.” She contends that her request was “quite different” from the request reviewed by the Supreme Judicial Court in Plymouth District. She goes on to argue that she “was only seeking a list of docket numbers related to two wiretapping statutes, similar to the request by the Globe in Globe Newspaper Company v. District Attorney for the Middle District. And [she] specifically did not request unique defendant ID numbers.” Based on the Office’s response, I find it has not met its burden to explain how the responsive docket numbers fall within the definition of CORI. In Globe. v. Middle District, the Supreme Judicial Court concluded 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.” See Middle District, 439 Mass. 374, 385-86 (2003). It is unclear how the narrow scope of this request would allow docket numbers to be withheld under Exemption (a) and CORI under Globe v. Middle District. The Office must clarify this. Conclusion Accordingly, the Office is ordered to provide Ms. Jarmanning with a response to her request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Allison Jarmanning