Allison Jarmanning v. Suffolk County District Attorney's Office (SPR 20221980)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 13, 2022 SPR22/1980 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), SPR22/1030 Determination of the Supervisor of Records (May 17, 2022), and SPR22/1587 Determination of the Supervisor of Records (July 25, 2022). In my July 25th determination, I ordered the Office to review the records, redact where necessary, and provide responsive records to Ms. Jarmanning. Subsequently, the Office responded to Ms. Jarmanning on August 29, 2022, stating that the records at issue in this appeal are currently under active litigation. 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 SPR22/1980 Page 2 September 13, 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. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its August 29, 2022 response, the Office states that “the subject of this appeal is currently under litigation.” This office has reviewed the trial court’s docket and verified that the records at issue in this case are the subject of civil litigation that is active and ongoing in the Suffolk County Superior Court. See Erkan & Associates, LLC v. Plymouth County District Attorney’s Office, et al., (Superior Ct. Docket No. 2284CV0097). Specifically, the pending litigation addresses the applicability of Exemption (a) and the Criminal Offender Record Information (CORI) Act to criminal docket numbers. See G. L. c. 4, § 7(26)(a); G. L. c. 6, § 167 (defining CORI). In light of the pending litigation, I decline to opine on these matters at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this civil action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Allison Jarmanning