Allison Jarmanning v. Worcester County District Attorney's Office (SPR 20221314)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2022 SPR22/1314 Mark Relation, Esq. Assistant District Attorney Records Access Officer Worcester County District Attorney’s Office Worcester Trial Court 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Allison Jarmanning, of WBUR, appealing the response of the Worcester 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 “[d]ocket numbers for the following charges prosecuted by your 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 SPR22/0933 Determination of the Supervisor of Records (May 4, 2022). In my May 4th 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 May 16, 2022. Unsatisfied with the Office’s response, Ms. Jarmanning petitioned this office and this appeal, SPR22/1314, 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, § 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. SPR22/1314 Page 2 June 21, 2022 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 May 16th response In its May 16, 2022 response, the Office, citing Att’y Gen. v. Dist. Attorney for the Plymouth Dist., 484 Mass. 260 (2020) posits, “[a]s the Supreme Judicial Court recognizes, a docket number indirectly allows a requestor to identify the criminal defendant in a criminal case when used in combination with other publicly available information. If that requestor were then able to associate that docket number and that defendant’s identity with the defendant’s internal tracking number, then the requestor would be able to ‘cobble together’ a statewide criminal history through taking the additional steps of successive queries to public databases, thereby making an ‘end run around the CORI restrictions.’ Id., at 268, 269. . . .” The Office contends, “[e]ven though Ms. Jarmanning does not request docket numbers alongside defendant internal tracking numbers here in the same request, providing docket numbers here would allow her, or anyone else, to match the two together through the use of other publicly available information and thereby obtain protected CORI. The only way to preserve the integrity of the CORI restrictions and the Supreme Judicial Court’s holding in Plymouth is to prevent the possibility of replicating a single prohibited request stepwise through multiple lesser requests. Such would not only create an ‘end run around the CORI restrictions’ but also an end run around the decisions of the Supreme Judicial Court. Therefore, docket numbers must be withheld.” 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).

Mark Relation, Esq. SPR22/1314 Page 3 June 21, 2022 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. Criminal offender record information (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 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.”).

Mark Relation, Esq. SPR22/1314 Page 4 June 21, 2022 Conclusion Accordingly, the Office is ordered to review the records, redact where necessary, and provide Ms. Jarmanning with a response to the request, provided 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: Allison Jarmanning