Murat Erkan, Esq. v. Worcester County District Attorney's Office (SPR 20222394)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 4, 2022 SPR22/2394 Mark Relation, Esq. Records Access Officer Worcester County District Attorney’s Office 225 Main Street, G301 Worcester, MA 01608 Dear Attorney Relation: I have received the petition of Murat Erkan, Esq. 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 October 6, 2022, Attorney Erkan requested, “… docket number for each case in which the Commonwealth charged any of the following offenses from April 13, 2018 to present …” pursuant two named statutes. The Office responded on October 20, 2022. Unsatisfied with the response, Attorney Erkan petitioned this office and this appeal, SPR22/2394, 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. 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. 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. SPR22/2394 Page 2 November 4, 2022 The Office’s October 20th response In its October 20, 2022 response, the Office cited Exemption (a) to withhold the requested records. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Office cited, G. L. c. 6, §§ 167-1788; Criminal offender record information (CORI) which 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

Mark Relation, Esq. SPR22/2394 Page 3 November 4, 2022 offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the Office posited, “…docket numbers are ‘specifically or by necessary implication’ exempt from disclosure under the Criminal Offender Record Information Act. G.L. c. 4. § 7(26)(a). See G.L. c. 6, §§ 167-1788; Attorney Gen. v. Dist. Attorney for Plymouth Dist., 484 Mass. 260, 274 (2020) (docket numbers must be ‘redacted from the requested information such that no individual can be directly or indirectly identified from the information’). To obtain information exempt from disclosure under the Criminal Offender Record Information Act, you may wish to contact the Department of Criminal Justice Information Services (DCJIS) …” Based on the Office’s response, it is unclear how the narrow scope of this request, which seeks two charges relating to controlled substances prosecuted from April 13, 2018 to present, would allow docket numbers to be withheld under Exemption (a) and CORI under Globe Newspaper Co. v. District Attorney for the Middle Dist., 439 Mass. 374, 375 (2003), (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.”). Consequently, I find the Office has not met its burden to withhold the docket numbers under CORI, as it operates through Exemption (a) of the Public Records Law. Conclusion Accordingly, the Office is ordered to provide Attorney Erkan 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, Manza Arthur Supervisor of Records cc: Murat Erkan, Esq.