Todd Wallack v. Hampden County District Attorney's Office (SPR 20242156)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 13, 2024 SPR24/2156 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. Previous Appeal This request was the subject of a previous appeal. See SPR24/1941 Determination of the Supervisor of Records (July 22, 2024). In my July 22nd determination, I ordered the Office to clarify its claims for withholding responsive records. Subsequently, the Office responded on July 29, 2024. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR24/2156, 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 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. SPR24/2156 Page 2 August 13, 2024 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. 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 29th Response In its July 29, 2024 response, the Office states that it is withholding responsive records under the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law, and Exemption (c). See G. L. c. 4, § 7(26)(a), (c). 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.

John A. Wendel, Esq. SPR24/2156 Page 3 August 13, 2024 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. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). In its July 29th response, under Exemption (a) and CORI, the Office argues the following: Without providing the information the HDAO specifically intends to withhold, the only further information the HDAO can provide is that there are three pending cases, all in the Hampden County Superior Court, as to which the HDAO has withheld the indictments, docket numbers, and names of the defendants.

John A. Wendel, Esq. SPR24/2156 Page 4 August 13, 2024 . . . [T]he open cases do not fall into any of the statutory exceptions to the prohibition against disclosure of CORI. Accordingly, if the records constitute CORI, they may not be disclosed. As also discussed in the HDAO’s original response, the Massachusetts Supreme Judicial Court held in Attorney General v. District Attorney for the Plymouth District, 484 Mass. 260 (2020), states that the records you requested may constitute CORI in certain circumstances. See id. at 267. The Supreme Judicial Court specifically held that names may constitute CORI, and that docket numbers may also constitute CORI because “any person who knows the docket number of a criminal case can learn the name of the criminal defendant in that case through the Trial Court’s public Internet portal. This information can be learned by anyone at any place and at any time; all that is required is access to a computer.” Id. at 267-268. Based on that, the Supreme Judicial Court held that release of docket numbers could be used to generate a criminal history more expansive than would be permissible under G. L. c. 6, § 172, and were therefore exempt from disclosure as public records. . . . While it is true that the Supreme Judicial Court held in that case that docket numbers are sometimes not CORI, because they are court records, and that this may include requests for docket numbers as to limited types of cases, see id. at 383-384, it is the view of the HDAO that your request is more comparable to the one at issue in Attorney General than the one at issue in Globe Newspaper Co., especially in view of the specific portion of your request referencing the intention to identify serial offenders. Based on the Office’s July 29th response, I find that the Office has not met its burden to withhold the records, in their entirety, in the three pending cases under the CORI statute, as it operates through Exemption (a) of the Public Records Law. Specifically, it is unclear whether the indictments can be redacted so that non-exempt portions can be provided. Further, it remains unclear how the docket numbers would constitute CORI. See Middle Dist., 439 Mass. at 385 (“Docket 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”). Specifically, it is unclear how the narrow scope of this request would allow the docket numbers to be withheld under Exemption (a) and CORI under Globe v. Middle District. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an

John A. Wendel, Esq. SPR24/2156 Page 5 August 13, 2024 unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its July 29th response, under Exemption (c), the Office argues the following: [T]he HDAO is withholding the records as to cases that resolved favorably for the defendants because release of that information would constitute an unwarranted invasion of the personal privacy of those defendants and has withheld the records pursuant to G. L. c. 4, § 7(26)(c), which exempts from disclosure any records “the disclosure of which may constitute an unwarranted invasion of personal privacy.” ... Here, the HDAO relied upon § 100A and the constitutional presumption of innocence to emphasize the significant privacy interest that former criminal defendants have, in those situations in which their cases have resolved in their favor, in not having the pall of the accusations hanging over them indefinitely. “There can be no clearer example of an unwarranted invasion of privacy than to release to the public that another individual was the subject of [a criminal] investigation.” Globe Newspaper Co. v. Police Comm’r of Boston, 419 Mass. 852, 867 (1995). This is especially true in cases involving such abhorrent charges as rape that tend to cause strong negative public reactions. Regarding the public interest in access to this information, your stated reason for making your request was an endeavor “to identify serial rapists who have been prosecuted in the past five years.” As the individuals in question have had their cases resolved in their favor, they cannot be said to have committed rape in the last five years as a matter of law, and disclosure of their information would therefore not further your

John A. Wendel, Esq. SPR24/2156 Page 6 August 13, 2024 interest. It is therefore the view of the HDAO that their privacy interest outweighs the public interest in their disclosure, such that exemption (c) applies. In this case, although the Office has provided information on the balancing test, based on the Office’s response, the Office has not demonstrated how the responsive records are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. Although, the Office has provided information with respect to the PETA balancing test, it is uncertain whether the withheld information is available from other sources, such as court records. PETA, 477 Mass. at 292. 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