Christine Willmsen v. Middlesex District Attorney's Office (SPR 20242061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 2, 2024 SPR24/2061 Meagan Horn, Esq. Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney Horn: I have received the petition of Christine Willmsen, of WBUR, appealing the response of the Middlesex District Attorney’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2024, Ms. Willmsen requested “... an electronic copy of the search warrant applications and returns for the following [identified twelve] cases that involve [identified individuals].” The Office provided a response on July 18, 2024. Unsatisfied with the Office’s response, Ms. Willmsen petitioned this office and SPR24/2061, 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) (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…”); 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). 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

Meagan Horn, Esq. SPR24/2061 Page 2 August 2, 2024 The Office’s July 18th Response In its July 18, 2024 response, the Office cited Exemption (a) of the Public Records Law to withhold one identified case. The Office also stated, “...cases arising out of Lynn District Court, Boston Municipal Court, and Suffolk Superior Court are handled by other District Attorneys’ offices. As such, this Office does not have any records in its possession, custody or control which would be responsive to your request as to [identified] dockets.” The Office further stated, As to dockets 1452CR002289, 0950CR001218, 9181CR01771, 9181CR01772, and 9181CR01773, please be advised that our Office’s case files for these matters are outside the retention schedule. Per the Massachusetts Statewide Record Retention Schedule, Section B6, No. 11, District Court case files need be retained for only 4 years after case disposition, and Superior Court case files other than first degree murder files need be retained for only 25 years after case disposition. As such, this Office does not retain any records which would be responsive to your request as to those dockets. Current appeal In her appeal, Ms. Willmsen submits that the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, and G. L. c. 41, § 97D “does not apply here.” Upon review of Ms. Willmsen’s petition, it appears Ms. Willmsen is only objecting to the Office’s response under Exemption (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, 545-546 (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

Meagan Horn, Esq. SPR24/2061 Page 3 August 2, 2024 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 advised, “[a]s to docket 2181CR00502, please be advised that these materials are exempt from public disclosure pursuant to exemption (a) (statutory) of the Public Records Law, M.G.L. c. 4, § 7, cl. twenty-sixth, as it constitutes Criminal Offender Record Information (CORI).” 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 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. . . . G. L. c. 6, § 167. Additionally, the Office in its response stated, “... as to docket 1581CR000007, these materials are barred from disclosure under M.G.L. c. 41, § 97D, as they pertain to charges of aggravated rape.”

Meagan Horn, Esq. SPR24/2061 Page 4 August 2, 2024 G. L. c. 41, § 97D provides in pertinent part: All reports of rape and sexual assault or attempts to commit such offenses, all reports of abuse perpetrated by family or household members, as defined in section 1 of chapter 209A, and all communications between police officers and victims of such offenses or abuse shall not be public reports and shall be maintained by the police departments in a manner that shall assure their confidentiality… G. L. c. 41, § 97D. Based upon the Office’s response, I find that the Office has not met its burden to show that all the records fall within the CORI Act. Specifically, the Office has not demonstrated that the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Further based upon the Office’s response, it is unclear how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a). Therefore, the Office may not withhold the records in their entirety pursuant to Exemption (a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). Conclusion Accordingly, the Office is ordered to provide Ms. Willmsen 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. 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. Ms. Willmsen 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: Christine Willmsen