Todd Wallack v. Middlesex District Attorney's Office (SPR 20242439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 11, 2024 SPR24/2439 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 Todd Wallack, 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, Mr. Wallack requested “... an electronic copy of the search warrant applications and returns for the following [identified twelve] cases that involve [identified individuals].” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/2061 Determination of the Supervisor of Records (August 2, 2024) In my August 2nd determination, I found that the Office had not met its burden to show that all the records fall within the CORI Act. Further, I found it unclear how all the requested records are restricted under G. L. c. 41, § 97D, as it operates through Exemption (a) of the Public Records Law. The Office provided a response on August 14, 2024. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office and this appeal, SPR24/2439, 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

Meagan Horn, Esq. SPR24/2439 Page 2 September 11, 2024 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). The Office’s August 14th Response In its August 14, 2024 response, the Office cited Exemption (a) of the Public Records Law to withhold the requested records and cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167 and G. L. c. 41, § 97D. Current appeal In his appeal, Mr. Wallack states, “[c]onsistent with our common law, that statute provides that search warrant materials are presumptively public after the return has been filed. ‘See: Commonwealth v. George W. Prescott Publishing Co., LLC, 463 Mass. 258, 263 (2012). The same case found G. L. c. 41, § 97D does not apply to search warrants and other public court records. ‘On its face, § 97D does not apply to search warrant affidavits or other judicial 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.”

Meagan Horn, Esq. SPR24/2439 Page 3 September 11, 2024 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: 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. 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.

Meagan Horn, Esq. SPR24/2439 Page 4 September 11, 2024 In its response, the Office advised, The previous letter provided two statutory bases under which disclosure of these records is barred. The first of these bases, applicable to both dockets, is that the records sought constitute Criminal Offender Record Information (CORI). CORI is defined in relevant part as “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… [or] other judicial proceedings.” M.G.L. c. 6, § 167; see also 803 C.M.R. 2.03. Both dockets concern criminal charges that were arraigned, and any search warrants pertaining to these dockets would necessarily concern the nature of these criminal charges. Further, because the defendants of these charges are identified in the request, it is not possible to provide any responsive material without the material constituting CORI. The second statutory basis under which disclosure is barred, applicable only to docket #1581CR00007, is M.G.L. c. 41, § 97D. M.G.L. c. 41, § 97D bars disclosure of reports concerning rape and sexual assault to the public. Docket #1581CR00007 contains charges of aggravated rape. The Supreme Judicial Court has held that §97D applies to District Attorneys’ Offices in contexts of requests for materials relating to rape cases. See Montefusco v. Commonwealth, 452 Mass. 1015, 1016 (2015) (finding that on a request by a defendant for his own criminal case file involving charges of rape that “there is no obligation on [a] district attorney to produce documents under the public records law…because materials relating to an allegation of sexual assault are exempt from that law,” citing M.G.L. c. 41, § 97D, M.G.L. c. 265, § 24C). As such, any materials responsive to your request are exempt from disclosure. In camera inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the requested records pursuant to Exemption (a) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the records, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding.

Meagan Horn, Esq. SPR24/2439 Page 5 September 11, 2024 Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack