Todd Wallack v. Hampden County District Attorney's Office (SPR 20241941)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 22, 2024 SPR24/1941 John A. Wendel, Esq. Assistant District Attorney Hampden District Attorney’s Office 50 State Street Springfield, MA 01102 Dear Attorney Wendel: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Hampden District Attorney’s Office (Office/HDAO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 20, 2024, Mr. Wallack requested the following: Indictments or criminal complaints issued since 1/1/2019 of any defendants who have been accused of raping more than one victim. Alternatively, you could provide copies of the news releases describing the charges, docket numbers of the cases, or the names of the defendants – whichever is easier for your office. The Office responded on July 8, 2024. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR24/1941, 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. 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

John A. Wendel, Esq. SPR24/1941 Page 2 July 22, 2024 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 July 8th Response In its July 8, 2024 response, the Office provides “two press releases and their accompanying photographs” and indicates that it is withholding other records pursuant to the Criminal Offender Record Information (CORI) statute, and other statutes, as they operate through Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). 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, 545-46 (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:

John A. Wendel, Esq. SPR24/1941 Page 3 July 22, 2024 “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. In its July 8th response, the Office also cites G. L. c. 6, § 167A (establishing Department of Criminal Justice Information Services), G. L. c. 6, § 172 (limiting access to CORI database), and G. L. c. 276, § 100A (providing for sealing of criminal court records in certain circumstances). Under the statutes cited above, the Office argues the following: Please be aware that that the HDAO has withheld certain responsive records. Certain individuals against whom complaints or indictments for rape have issued since January 1, 2019, have been acquitted or had the charges against them dropped or dismissed. In such cases, the records are usually sealed pursuant to G. L. c. 276, § 100A. As such, and in view of those individuals’ constitutional right to a presumption of innocence, release of information regarding those cases would constitute an unwarranted invasion of their privacy, and the records are therefore withheld ... . . . Certain other complaints or indictments for rape that meet your criteria are currently pending, and records regarding those cases have also been withheld as Criminal Offender Record Information (“CORI”) pursuant to G. L. c. 4, § 7(26)(a), and G. L. c. 6, §§ 167A, 172. . . .

John A. Wendel, Esq. SPR24/1941 Page 4 July 22, 2024 Because the cases discussed are open, they do not fall under any of the permissive bases pursuant to which members of the public may receive CORI. See G. L. c. 6, § 172. Accordingly, the HDAO is unable to provide you with the complaints or indictments for those cases or the names of the individuals charged therein because they concern “identifiable individual[s] and relate to the nature or disposition of … criminal charge[s].” G. L. c. 6, § 167; see Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260, 267 (2020). Additionally, in Attorney General, the Massachusetts Supreme Judicial Court held that disclosure of docket numbers may constitute a disclosure of CORI because a docket number may be used to identify the individuals charged in those cases. See Attorney General, 484 Mass. at 267-268. Accordingly, the names, docket numbers, and indictments for those cases are withheld. Based on the information provided in the Office’s July 8th response, I find it is uncertain how the statutes cited above operate through Exemption (a) of the Public Records Law to withhold the responsive records from disclosure. Specifically, it is not clear how all of the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as required under the definition of CORI. See G. L. c. 6, § 167. Further, it is unclear whether any of the withheld records have actually been sealed pursuant to G. L. c. 276, § 100A. The Office must clarify these matters. Additionally, it is unclear from the Office’s response which specific records the Office intends to withhold. The Office must identify the records, categories of records, or portions of records it intends to withhold under Exemption (a). See G. L. c. 66, § 10(b)(iv) (a written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based”). 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 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: Todd Wallack