Willoughby Mariano v. Middlesex District Attorney's Office (SPR 20250389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 19, 2025 SPR25/0389 Daniel M. DeBlander Assistant District Attorney Middlesex District Attorney’s Office 15 Commonwealth Avenue Woburn, MA 01801 Dear Attorney DeBlander: I have received the petition of Willoughby Mariano, 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 January 21, 2025, Mr. Mariano requested the following records relating to Middlesex Superior Court Case 2381CR00173, Commonwealth v. Aldrich: Commonwealth’s Compliance with M.R.C.P Rule Discovery, Aug. 6, 2024 1. Photographs of Knife - 644 (8 digital photographs) 2. Digital Files from A. S. (12 still images, 4 video files) 5. Transit Police Report, dated June 3, 2024 (2 pages) Commonwealth’s Compliance with M.R.C.P Rule Discovery June 20, 2023 Acton PD 57. 13AXT-P7815 (redacted) (60 pages) 58. 2013-7815 (unredacted) (35 pages) 59. 2013-7815 (65 pages) 60. MBTA/Acton PD Wanted Poster Maynard PD 94.07-X214-OF (4 pages) MSP Revere Barracks 109. Body Camera Footage - 2265-DIQ2PP (1 digital video) Transit Police 120. [an identified individual] (23 pages)[.] 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

Daniel DeBlander, Esq. SPR25/0389 Page 2 February 19, 2025 The Office provided a response on February 4, 2025. Unsatisfied with the Office’s response, Mr. Mariano petitioned this office and SPR25/0389, 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. Att’y 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. Current appeal In his appeal, Mr. Mariano states, “I write to appeal the Feb. 4, 2025 decision by the Middlesex District Attorney to deny my request for copies of records from criminal case Commonwealth v. Christopher Aldrich, Middlesex Superior Court docket number 2381CR00173 ... The current version of the CORI statute only restricts access to a specific Department of Criminal Justice Information Systems database called iCORI. None of the requested records come from the iCORI database.” The Office’s February 4th Response In its February 4, 2025 response, the Office cited Exemption (a) to withhold the requested 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

Daniel DeBlander, Esq. SPR25/0389 Page 3 February 19, 2025 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.” 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 cited the Criminal Offender Record Information (CORI), which provides in pertinent part: 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.

Daniel DeBlander, Esq. SPR25/0389 Page 4 February 19, 2025 In its response, the Office stated the following: ... the records and information requested are barred from disclosure by this Office. Specifically, the information you seek is exempt from public disclosure pursuant to exemption (a) (statutory) of the Public Records Law, G.L. c. 4, § 7(26)(a), as it constitutes 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.” G.L. c. 6, § 167; see also 803 C.M.R. 2.03. Improper disclosure of CORI is a criminal offense punishable “by imprisonment in a jail or house of correction for not more than 1 year or by a fine of not more $5,000 or by both such fine and imprisonment.” G.L. c. 6, § 178. While this information and the requested records may be barred from disclosure by our Office, you may be able to obtain the information you need directly from the court by contacting the clerk’s office for the Middlesex County Superior Court, 200 Trade Center, 2nd Floor, Woburn, MA 01801, at Middlesex.clerksoffice@jud.state.ma.us or by phone at (781) 939-2700. Based on the Office’s response, I find that the Office has not met its burden of specificity to show that all the records fall within the CORI Act. Specifically, the Office has not demonstrated that all of the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Therefore, the Office may not withhold the records, in their entirety, under Exemption (a). It is additionally uncertain how the records may be withheld in their entirety. The Office must explain whether segregable portions can be provided. 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). Further, based on the Office’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Office withheld responsive records without identifying each of the records. Therefore, the Office must identify the record(s) it has in its possession that the Office withheld under Exemption (a). Conclusion Accordingly, the Office is ordered to provide Mr. Mariano 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. Mr.

Daniel DeBlander, Esq. SPR25/0389 Page 5 February 19, 2025 Mariano 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: Willoughby Mariano