Todd Wallack v. Bristol County District Attorney's Office (SPR 20231545)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2023 SPR23/1545 Courtney Almeida, Esq. Assistant District Attorney Records Access Officer Bristol County District Attorney’s Office 888 Purchase Street New Bedford, MA 02740 Dear Attorney Almeida: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Bristol 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 January 24, 2023, Mr. Wallack requested “[a]n electronic list of cases the district attorney’s office has prosecuted since Jan. 1, 2022, including all publicly available columns/fields.” On April 18, 2023, Mr. Wallack modified his request to “an electronic list of all the cases the district attorney’s office has prosecuted since Jan. 1, 2010, including all publicly available columns/fields (not just cases since 2022).” Prior Appeals The requested records were the subject of prior appeals. See SPR23/0400 Determination of the Supervisor of Records (March 15, 2023); SPR23/1115 Determination of the Supervisor of Records (May 31, 2023) and SPR23/1371 Determination of the Supervisor of Records (July 5, 2023). In my July 5th determination, I found that the Office had previously provided Mr. Wallack with the requested records and closed the appeal. On July 5, 2023, Mr. Wallack petitioned this office and this appeal, SPR23/1545, 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

Courtney Almeida, Esq. SPR23/1545 Page 2 July 19, 2023 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. The Department’s June 28th response In a June 28, 2023 response, the Office addressed Mr. Wallack’s claim of an update to the requested dataset stating the following: Mr. Wallack’s understanding of an “update” is misplaced. It seems that Mr. Wallack wants our office to provide an update, but also wants our office to provide him with all the records previously provided to him on February 10, 2022, August 6, 2020, and January 10, 2019. The records provided to Mr. Wallack on February 10, 2022, contained all DAMION information from 2010 to then present day. The records provided on August 6, 2020, contained DAMION information between January 2019 to the then present day. Lastly, the records provided on January 10, 2019, included DAMION information between January 2013 through January 4, 2019. Our office has already provided these records and is not required to provide these records again. Also, as you can see noted in the above records, Mr. Wallack has been provided with some records more than once, most significantly on February 10, 2022, where he was provided with all records previously provided on August 6, 2020, and January 10, 2019. Therefore, Mr. Wallack’s request dated January 25, 2023, has been completed and Mr. Wallack is in possession of all responsive records to his request Current Appeal In his current appeal, Mr. Wallack indicated: While the agency may have provided the data in the past, it does not negate its responsibility to provide access to that same data today. Moreover, the data resides in a database that is constantly being updated. So the data provided in the past may contains [sic] errors or outdated information that has since been corrected. In addition, it is cheaper and easier to provide the full dataset -- using the same query of all records since Jan. 1, 2010 -- rather than writing a more complicated query to pull only part of the data. For all those reasons, I believe it is essential that the agency provide the full dataset I requested. The Public Records Regulation, 950 C.M.R. 32.07, provides that “upon request, a requester shall be entitled to receive in hand, by mail, by facsimile or electronically one copy of a public record or any desired portion of a public record.” See 950 C.M.R. 32.07 (emphasis added). However, based on the Office’s response, and in conjunction with Mr. Wallack’s appeal,

Courtney Almeida, Esq. SPR23/1545 Page 3 July 19, 2023 it is unclear if the dataset provided on February 10, 2022, has been revised or updated. The Office must demonstrate that the full dataset responsive to Mr. Wallack’s April 18th modified request, is the same copy provided in February. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Office is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Mr. Wallack may appeal the substantive nature of the Office’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack