Allison Jarmanning v. Suffolk County District Attorney's Office (SPR 20221587)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 25, 2022 SPR22/1587 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 Appeals This request was the subject of previous appeals. See SPR22/0941 Determination of the Supervisor of Records (May 3, 2022) and SPR22/1030 Determination of the Supervisor of Records (May 17, 2022). In my May 17th determination, I ordered the Office to clarify its claims under Exemption (a). See G. L. c. 4, § 7(26)(a). Subsequently, the Office responded on June 1, 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). 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 SPR22/1587 Page 2 July 25, 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 June 1st Response In its June 1, 2022 response, as in its previous April 22, 2022 response, the Office cites Exemption (a) of the Public Records Law and the CORI Act for withholding responsive docket numbers. 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. Criminal Offender Record Information (CORI) The current definition of 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

Claudia Buruca SPR22/1587 Page 3 July 25, 2022 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). In its June 1st response, as in its April 22nd response, the Office again cites Att’y Gen. v. District Attorney for the Plymouth District, 484 Mass. 260 (2020) and argues the following: The docket number 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). The link to a person’s other cases exists in an unidentifiable form in these DAMION sets. However, the docket number subsequently connects this criminal history to an individual’s name through the Trial Court website, as the website is only searchable to the public via docket number. Even if [the] Office were to release docket numbers without a defendant’s unique person identifier attached to them, [one] can easily determine which docket numbers are associated with which

Claudia Buruca SPR22/1587 Page 4 July 25, 2022 unique person identifier in a separate DAMION dataset by comparing the filing date or other information available on the Trial Court’s website to the information in DAMION. This is particularly feasible with a narrow scope of data, such as all wiretapping charges from 2017-2022. Based on the Office’s June 1st response, I find that the Office 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). Consequently, the Office has not demonstrated how the narrow scope of this request would allow docket numbers to be withheld under Exemption (a) and CORI under Globe v. Middle District. Conclusion Accordingly, the Office is ordered to review the records, redact where necessary and provide the responsive records to Ms. Jarmanning, 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, Manza Arthur Supervisor of Records cc: Allison Jarmanning

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 11, 2022 SPR22/1587 Allison Jarmanning WBUR - Boston's NPR News Station VIA EMAIL Dear Ms. Allison Jarmanning: I have received your letter appealing the response of the Suffolk County District Attorney's Office to your request for records. I have directed a member of my staff, Jeffrey Gottfredsen, Esq., to review this matter. Upon completion of the review, I will advise you in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office immediately. Any further correspondence concerning this specific appeal should refer to the SPR case number listed under the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Claudia Buruca 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

Chan, Benjamin (SEC) From: Ally Jarmanning <allyjar@bu.edu> Sent: Monday, July 11, 2022 11:31 AM To: Chan, Benjamin (SEC) Cc: SEC-DL-PREWEB; Wu, Victoria (SUF); Buruca, Claudia (SUF) Subject: Re: SCDAO PRR #220202A; SPR 22-1030 Attachments: SCDAO PRR #22-0202A_ SPR 22-1030 (1).pdf CAUTION: This email originated from a sender outside of the Commonwealth of Massachusetts mail system. Do not click on links or open attachments unless you recognize the sender and know the content is safe. I apologize for missing this earlier email. I am seeking to file an appeal concerning the response provided towards Determination SPR 22/1030. Attached is the custodian's response. Thank you. -Ally On Mon, Jun 6, 2022 at 1:04 PM Chan, Benjamin (SEC) <benjamin.chan@state.ma.us> wrote: Good Afternoon, Could you please confirm if you are seeking to file an appeal concerning the response provided towards Determination SPR22/1030? If so, please also forward a copy of the Custodian’s response provided. Very Respectfully, Benjamin Benjamin Chan (he/him/his) Senior Legal Clerk Office of the Secretary of the Commonwealth Public Records Division 1

One Ashburton Place, Room 1719 Boston, MA 02108 617-727-2832 From: Ally Jarmanning <allyjar@bu.edu> Sent: Monday, June 6, 2022 10:24 AM To: Buruca, Claudia (SUF) <claudia.buruca@mass.gov> Cc: Wu, Victoria (SUF) <victoria.wu@mass.gov>; SEC-DL-PREWEB <SEC-DL-PREWEB@sec.state.ma.us> Subject: Re: SCDAO PRR #220202A; SPR 22-1030 Thank you very much. The Suffolk DA's office is repeating the same arguments it previously made in refusing to provide docket numbers. Docket numbers are required to be released under Globe v. District Attorneys for the Middle District. I have already received docket numbers for this very narrow request from DA's offices in Hampden, Berkshire, Essex, Cape and Islands, Norfolk, Middlesex, Northwestern and Bristol. All provided the docket numbers without issue. You can reach me at 617-827-0015. -Ally On Wed, Jun 1, 2022 at 2:59 PM Buruca, Claudia (SUF) <claudia.buruca@state.ma.us> wrote: Dear Ms. Jarmanning, Enclosed you will find a letter in regards to the public records request you made for wiretap docket numbers. Sincerely, Claudia ___ 2

Claudia Buruca (she/her/ella) Records Access Officer Public Records Office of Suffolk County District Attorney Kevin Hayden One Bulfinch Place | Boston, MA 02114 T: (617) 619-4067 The information contained in this email and any attachments may be legally privileged and confidential. If you are not an intended recipient, you are hereby notified that any dissemination, distribution, or copying of this email is strictly prohibited. If you have received this email in error, please notify the sender and permanently delete the email and any attachments immediately. You should not retain, copy, or use this email or any attachments for any purpose, nor disclose all or any part of the contents to any other person. -- Ally Jarmanning Senior Reporter WBUR - Boston's NPR News Station wbur.org -- 617-827-0015 @allyjarmanning she/her More of my work can be read here -- Ally Jarmanning 3

Senior Reporter WBUR - Boston's NPR News Station wbur.org -- 617-827-0015 @allyjarmanning she/her More of my work can be read here 4

June 1, 2022 VIA EMAIL Ally Jarmanning Senior Reporter WBUR, Boston’s NPR News Station allyjar@bu.edu Re: Public Records Request #22-0202A SPR 22/1030 Dear Ms. Jarmanning, On February 2, 2022, this Office received your public records request, in which you were seeking “Docket numbers for the following charges prosecuted by [the Suffolk County District Attorney’s Office] since January 1, 2017: WIRETAP, UNLAWFUL c272 §99(C)(1) (including attempted wiretapping) WIRETAP, DISCLOSE CONTENTS OF c272 §99(C)(3) or (4)”. It is our Office’s 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”). Plymouth District raises concern where an individual may circumvent CORI protections through public records requests for DAMION information: [I]f a criminal history could be compiled through a public records request, that individual would not be able to learn that someone had obtained his or her criminal history. Moreover, in contrast with those persons who receive an individual's criminal history through a DCJIS request, there is no legal prohibition against further dissemination of a criminal history compiled through a public records request… In light of exemption (a), the public records law cannot be interpreted to permit members of the general public to make an end run around the CORI restrictions by allowing them to generate criminal histories of individuals through public records requests to prosecutors, and thereby obtain

a more extensive criminal history than they would receive through a DCJIS query. Attorney General v. District Attorney for the Plymouth Dist., 484 Mass. 260, 268 (2020). Our Office has released large DAMION datasets to the public several times, including all of DAMION in its entirety through January 2022. These datasets contain a category called “ID_PRSN_DFNDNT.” This is DAMION’s unique person identifier for a defendant and remains constant throughout every DAMION data set that our Office produces. A unique person identifier is tied to every case associated with a defendant, and thus would allow an individual to compile a person’s criminal history. The docket number 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). The link to a person’s other cases exists in an unidentifiable form in these DAMION sets. However, the docket number subsequently connects this criminal history to an individual’s name through the Trial Court website, as the website is only searchable to the public via docket number. Even if our Office were to release docket numbers without a defendant’s unique person identifier attached to them, you can easily determine which docket numbers are associated with which unique person identifier in a separate DAMION dataset by comparing the filing date or other information available on the Trial Court’s website to the information in DAMION. This is particularly feasible with a narrow scope of data, such as all wiretapping charges from 2017-2022. Furthermore, on February 2, 2022, you sent an email that reversed an amendment to your request, stating “[a]pologies for the reversal, but I understand a colleague of mine has already asked for statistical information” (the statistical information being a January 2010 – January 2022 DAMION dataset released to your colleague). Given the fact that, 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. Thus, we decline to release of docket numbers. This docket number loophole between Middle District and Plymouth District is currently undergoing litigation in Suffolk Civil Superior Court. Should you have further questions, please feel free to contact me directly at claudia.buruca@mass.gov. You have the right to appeal this denial to the supervisor of public records under G.L. c. 66, § 10A(a), and to seek review of an unfavorable decision through a civil action in the superior court under G.L. c. 66, § 10A(c). Most Sincerely, /s/ Claudia Buruca Claudia Buruca Records Access Officer Cc: Supervisor of Public Records 2

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

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2022 SPR22/1030 Allison Jarmanning WBUR - Boston's NPR News Station VIA EMAIL Dear Ms. Allison Jarmanning: I have received your letter appealing the response of the Suffolk County District Attorney's Office to your request for records. I have directed a member of my staff, Jeffrey Gottfredsen, Esq., to review this matter. Upon completion of the review, I will advise you in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office immediately. Any further correspondence concerning this specific appeal should refer to the SPR case number listed under the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ms. Claudia Buruca 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

Chan, Benjamin (SEC) From: Ally Jarmanning <allyjar@bu.edu> Sent: Tuesday, May 3, 2022 3:37 PM To: Buruca, Claudia (DAA); SEC-DL-PREWEB Subject: appeal -- Suffolk County wiretap docket numbers Attachments: Suffolk wiretap emails (1).pdf; SCDAO PRR #22-0202A_ SPR 22-0941.pdf Hello, I’m writing to appeal the response of the Suffolk County District Attorney’s office regarding my Feb. 2, 2022 request for docket numbers for cases related to two little used wiretapping statutes. This request was previously the subject of a time appeal (SPR22/0941). The DA's office responded on April 22, 2022 rejecting my request. In their denial, they cite the CORI law and Att'y Gen. v. Dist. Att'y for Plymouth Dist., 484 Mass. 260, 262, 141 N.E.3d 429, 432 (2020). I believe the department is relying on the incorrect case law for its decision. My request for docket numbers was almost identical to one made by the Boston Globe in Globe Newspaper Company v. District Attorney for the Middle District (2003), where the court ruled that docket numbers are public. "There is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public," the court ruled. Like the Globe reporters in the 2003 case, I only requested docket numbers for cases involving a limited number of charges. By contrast, Att'y Gen. v. Dist. Att'y for Plymouth Dist involved a very different request for a complete list of all cases filed by district attorneys across the state. In the latter case, the court was concerned that docket numbers in combination with unique defendant ID numbers and the complete list of all cases filed by district attorneys statewide could be used to identify individual defendants and obtain a full list of all charges filed against them, similar to a complete CORI report. Again, my request was quite different. I 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 I specifically did not request unique defendant ID numbers. It is also worth noting that the Hampden, Bristol, Essex, Cape and Islands, Norfolk, Middlesex and Northwestern DAs have already provided the data I requested. I respectfully request the Supervisor of Records review this decision. Attached is my initial request and the response from the DA's office. Thank you. -Ally -- Ally Jarmanning Senior Reporter WBUR - Boston's NPR News Station wbur.org -- 1

617-827-0015 @allyjarmanning she/her More of my work can be read here 2

April 22, 2022 VIA EMAIL Ally Jarmanning Senior Reporter WBUR, Boston’s NPR News Station allyjar@bu.edu Re: Public Records Request #22-0202A SPR 22/0941 Dear Ms. Jarmanning, On February 2, 2022, this Office received your public records request, in which you were seeking “Docket numbers for the following charges prosecuted by [the Suffolk County District Attorney’s Office] since January 1, 2017: WIRETAP, UNLAWFUL c272 §99(C)(1) (including attempted wiretapping) WIRETAP, DISCLOSE CONTENTS OF c272 §99(C)(3) or (4)”. It is our Office’s 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”). Plymouth District raises concern where an individual may circumvent CORI protections through public records requests for DAMION information: [I]f a criminal history could be compiled through a public records request, that individual would not be able to learn that someone had obtained his or her criminal history. Moreover, in contrast with those persons who receive an individual's criminal history through a DCJIS request, there is no legal prohibition against further dissemination of a criminal history compiled through a public records request… In light of exemption (a), the public records law cannot be interpreted to permit members of the general public to make an end run around the CORI restrictions by allowing them to generate criminal histories of individuals through public records requests to prosecutors, and thereby obtain

SCDAO PRR#22-0202A; SPR 22/0941 April 22, 2022 a more extensive criminal history than they would receive through a DCJIS query. Attorney General v. District Attorney for the Plymouth Dist., 484 Mass. 260, 268 (2020). 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. Should you have further questions, please feel free to contact me directly at claudia.buruca@mass.gov. You have the right to appeal this denial to the supervisor of public records under G.L. c. 66, § 10A(a), and to seek review of an unfavorable decision through a civil action in the superior court under G.L. c. 66, § 10A(c). Most Sincerely, /s/ Claudia Buruca Claudia Buruca Records Access Officer Cc: Supervisor of Public Records 2

4/20/22, 4:37 PM Boston University Mail - WBUR - wiretap docket numbers Allison Jarmanning <allyjar@bu.edu> WBUR - wiretap docket numbers 6 messages Ally Jarmanning <allyjar@bu.edu> Wed, Feb 2, 2022 at 10:56 AM To: "Brelis, Matthew (DAA)" <matthew.brelis@state.ma.us>, "Algarin, Renee (DAA)" <renee.algarin@state.ma.us> Hi Matt and Renee, I hope you’re both doing well. Can you provide me with docket 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) Let me know if you have any questions. I’m at 617-827-0015. Thank you! -Ally -- Ally Jarmanning Senior Reporter WBUR - Boston's NPR News Station wbur.org -- 617-827-0015 @allyjarmanning she/her More of my work can be read here Algarin, Renee (SUF) <renee.algarin@state.ma.us> Wed, Feb 2, 2022 at 11:06 AM To: Ally Jarmanning <allyjar@bu.edu>, "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us> Cc: "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Hi Ally, Thanks for reaching out. I’ve cc’d our Public Records team to field this request. Best, Renee From: Ally Jarmanning <allyjar@bu.edu> Sent: Wednesday, February 2, 2022 10:56 AM To: Brelis, Matthew (SUF) <Matthew.Brelis@mass.gov>; Algarin, Renee (SUF) <renee.algarin@mass.gov> Subject: WBUR - wiretap docket numbers CAUTION: This email originated from a sender outside of the Commonwealth of Massachusetts mail system. Do not click on links or open attachments unless you recognize the sender and know the content is safe. https://mail.google.com/mail/u/0/?ik=59b7df467a&view=pt&search=all&permthid=thread-a%3Ar1306745823880040422&simpl=msg-a%3Ar126532475790226447… 1/3

4/20/22, 4:37 PM Boston University Mail - WBUR - wiretap docket numbers [Quoted text hidden] Ally Jarmanning <allyjar@bu.edu> Wed, Feb 2, 2022 at 11:18 AM To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Hi, I'm going to amend my request to ask for any statistical information you can provide about charges prosecuted by your office since January 1, 2017 for: WIRETAP, UNLAWFUL c272 §99(C)(1) (including attempted wiretapping) WIRETAP, DISCLOSE CONTENTS OF c272 §99(C)(3) or (4) This would include (but not be limited to): date charges were filed, court they were filed in, department filing the charge, way the charge was initiated, disposition, etc. Thank you! -Ally [Quoted text hidden] Ally Jarmanning <allyjar@bu.edu> Wed, Feb 2, 2022 at 11:25 AM To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Apologies for the reversal, but I understand a colleague of mine has already asked for statistical information. So please proceed with my original request for: Docket 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) It's my understanding that the SJC ordered DAs to provide docket numbers in GLOBE NEWSPAPER COMPANY v. DISTRICT ATTORNEY FOR the MIDDLE DISTRICT & others (2003). [Quoted text hidden] Ally Jarmanning <allyjar@bu.edu> Wed, Apr 20, 2022 at 1:59 PM To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Hello, I never received a response to this request. Does the DA's office plan to respond? Thank you. -Ally [Quoted text hidden] Mail Delivery System <MAILER-DAEMON@bu.edu> Wed, Apr 20, 2022 at 1:59 PM To: allyjar@bu.edu Your message sent on: 20 Apr 2022 17:59:45 -0000 to recipient: matthew.brelis@state.ma.us with subject: Re: WBUR - wiretap docket numbers, was not delivered because: 5.3.0 - Other mail system problem 550-'5.1.1 User Unknown' Final-Recipient: rfc822;matthew.brelis@state.ma.us Action: failed Status: 5.0.0 (permanent failure) https://mail.google.com/mail/u/0/?ik=59b7df467a&view=pt&search=all&permthid=thread-a%3Ar1306745823880040422&simpl=msg-a%3Ar126532475790226447… 2/3

4/20/22, 4:37 PM Boston University Mail - WBUR - wiretap docket numbers Remote-MTA: dns; [146.243.122.35] Diagnostic-Code: smtp; 5.3.0 - Other mail system problem 550-'5.1.1 User Unknown' (delivery attempts: 0) ---------- Forwarded message ---------- From: Ally Jarmanning <allyjar@bu.edu> To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Bcc: Date: Wed, 20 Apr 2022 13:59:24 -0400 Subject: Re: WBUR - wiretap docket numbers noname 0K https://mail.google.com/mail/u/0/?ik=59b7df467a&view=pt&search=all&permthid=thread-a%3Ar1306745823880040422&simpl=msg-a%3Ar126532475790226447… 3/3

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 3, 2022 SPR22/0941 Claudia Buruca Records Access Officer Suffolk County District Attorney’s Office One Bulfinch Place, Suite 300 Boston, MA 02114 Dear Ms. Buruca: I have received the petition of Allison Jarmanning of WBUR appealing the nonresponse 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).” Claiming to not yet have received a response, Ms. Jarmanning petitioned this office, and this appeal, SPR22/0941, was opened as a result. Subsequently, I learned that the Office provided Ms. Jarmanning with a response dated April 22, 2022. Where the basis of this appeal was opened as a result of the Office’s lack of a written response, I will now consider this administrative appeal closed. Ms. Jarmanning may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, .' ,, , - ·• · . ~ Rebecca S. Murray Supervisor of Records cc: Allison Jarmanning 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

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 21, 2022 SPR22/0941 Ms. Allison Jarmanning WBUR - Boston's NPR News Station VIA EMAIL MA Dear Ms. Allison Jarmanning: I have received your letter appealing the response of the Suffolk County District Attorney's Office to your request for records. I have directed a member of my staff, Fredson Sossavi, to review this matter. Upon completion of the review, I will advise you in writing of the disposition of this case. If in the interim you receive a satisfactory response to your request, please notify this office immediately. Any further correspondence concerning this specific appeal should refer to the SPR case number listed under the date of this letter. Sincerely, Rebecca S. Murray Supervisor of Records Cc: Ms. Claudia Buruca 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

From: Ally Jarmanning To: SEC-DL-PREWEB; SCDAOPRR (DAA); Algarin, Renee (DAA) Subject: time appeal - Suffolk DA"s office Date: Thursday, April 21, 2022 2:24:53 PM Attachments: Suffolk DA wiretap correspondence.pdf Hello, I'm appealing the non-response of the Suffolk County District Attorney's office to a request I made on Feb. 2, 2022. I 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) I have not yet received a response. Thank you for your assistance. -Ally -- Ally Jarmanning Senior Reporter WBUR - Boston's NPR News Station wbur.org -- 617-827-0015 @allyjarmanning she/her More of my work can be read here

4/21/22, 2:21 PM Boston University Mail - WBUR - wiretap docket numbers Allison Jarmanning <allyjar@bu.edu> WBUR - wiretap docket numbers 6 messages Ally Jarmanning <allyjar@bu.edu> Wed, Feb 2, 2022 at 10:56 AM To: "Brelis, Matthew (DAA)" <matthew.brelis@state.ma.us>, "Algarin, Renee (DAA)" <renee.algarin@state.ma.us> Hi Matt and Renee, I hope you’re both doing well. Can you provide me with docket 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) Let me know if you have any questions. I’m at 617-827-0015. Thank you! -Ally -- Ally Jarmanning Senior Reporter WBUR - Boston's NPR News Station wbur.org -- 617-827-0015 @allyjarmanning she/her More of my work can be read here Algarin, Renee (SUF) <renee.algarin@state.ma.us> Wed, Feb 2, 2022 at 11:06 AM To: Ally Jarmanning <allyjar@bu.edu>, "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us> Cc: "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Hi Ally, Thanks for reaching out. I’ve cc’d our Public Records team to field this request. Best, Renee From: Ally Jarmanning <allyjar@bu.edu> Sent: Wednesday, February 2, 2022 10:56 AM To: Brelis, Matthew (SUF) <Matthew.Brelis@mass.gov>; Algarin, Renee (SUF) <renee.algarin@mass.gov> Subject: WBUR - wiretap docket numbers CAUTION: This email originated from a sender outside of the Commonwealth of Massachusetts mail system. Do not click on links or open attachments unless you recognize the sender and know the content is safe. https://mail.google.com/mail/u/0/?ik=59b7df467a&view=pt&search=all&permthid=thread-a%3Ar1306745823880040422&simpl=msg-a%3Ar126532475790226447… 1/3

4/21/22, 2:21 PM Boston University Mail - WBUR - wiretap docket numbers [Quoted text hidden] Ally Jarmanning <allyjar@bu.edu> Wed, Feb 2, 2022 at 11:18 AM To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Hi, I'm going to amend my request to ask for any statistical information you can provide about charges prosecuted by your office since January 1, 2017 for: WIRETAP, UNLAWFUL c272 §99(C)(1) (including attempted wiretapping) WIRETAP, DISCLOSE CONTENTS OF c272 §99(C)(3) or (4) This would include (but not be limited to): date charges were filed, court they were filed in, department filing the charge, way the charge was initiated, disposition, etc. Thank you! -Ally [Quoted text hidden] Ally Jarmanning <allyjar@bu.edu> Wed, Feb 2, 2022 at 11:25 AM To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Apologies for the reversal, but I understand a colleague of mine has already asked for statistical information. So please proceed with my original request for: Docket 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) It's my understanding that the SJC ordered DAs to provide docket numbers in GLOBE NEWSPAPER COMPANY v. DISTRICT ATTORNEY FOR the MIDDLE DISTRICT & others (2003). [Quoted text hidden] Ally Jarmanning <allyjar@bu.edu> Wed, Apr 20, 2022 at 1:59 PM To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Hello, I never received a response to this request. Does the DA's office plan to respond? Thank you. -Ally [Quoted text hidden] Mail Delivery System <MAILER-DAEMON@bu.edu> Wed, Apr 20, 2022 at 1:59 PM To: allyjar@bu.edu Your message sent on: 20 Apr 2022 17:59:45 -0000 to recipient: matthew.brelis@state.ma.us with subject: Re: WBUR - wiretap docket numbers, was not delivered because: 5.3.0 - Other mail system problem 550-'5.1.1 User Unknown' Final-Recipient: rfc822;matthew.brelis@state.ma.us Action: failed Status: 5.0.0 (permanent failure) https://mail.google.com/mail/u/0/?ik=59b7df467a&view=pt&search=all&permthid=thread-a%3Ar1306745823880040422&simpl=msg-a%3Ar126532475790226447… 2/3

4/21/22, 2:21 PM Boston University Mail - WBUR - wiretap docket numbers Remote-MTA: dns; [146.243.122.35] Diagnostic-Code: smtp; 5.3.0 - Other mail system problem 550-'5.1.1 User Unknown' (delivery attempts: 0) ---------- Forwarded message ---------- From: Ally Jarmanning <allyjar@bu.edu> To: "Algarin, Renee (SUF)" <renee.algarin@state.ma.us> Cc: "Brelis, Matthew (SUF)" <matthew.brelis@state.ma.us>, "SCDAOPRR (SUF)" <scdaoprr@state.ma.us> Bcc: Date: Wed, 20 Apr 2022 13:59:24 -0400 Subject: Re: WBUR - wiretap docket numbers noname 0K https://mail.google.com/mail/u/0/?ik=59b7df467a&view=pt&search=all&permthid=thread-a%3Ar1306745823880040422&simpl=msg-a%3Ar126532475790226447… 3/3