Todd Wallack v. Office of the Comptroller (SPR 20250570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 12, 2025 SPR25/0570 Darian Roberts, Esq. Assistant General Counsel Records Access Officer Office of the Comptroller One Ashburton Place, Room 901 Boston, MA 02108 Dear Attorney Roberts: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Office of the Comptroller (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 12, 2025, Mr. Wallack requested “a copy of the records of the following payouts, including the names of the recipient, listed in the Comptroller’s compilation of state settlements and judgments,” and provided a list sorted by dates and dollar amounts. The Office responded on February 27, 2025, and assigned reference number 25-27 to this request. Unsatisfied with the Office’s response, Mr. Wallack petitioned this office, and this appeal, SPR25/0570, 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. 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 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

Darian Roberts, Esq. SPR25/0570 Page 2 March 12, 2025 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 petition, Mr. Wallack argues the following: The Office of the Comptroller argues that the names of recipients of settlements and court judgments are confidential. The office also redacted docket numbers for public court cases. It is unclear why. I do not believe the laws the agency cited apply to the records in this case. For instance, the agency cited the CORI law, which specifically restricts information from the Department of Criminal Justice Information System’s iCORI database. None of this information comes from the iCORI database. . . . A judge ruled the names of settlement recipients are public in Globe Newspaper Co. Inc. vs. Executive Office of Energy & Environmental Affairs et al. The Office’s February 27th Response In its February 27, 2025 response, the Office provides “three potentially responsive claim forms” in redacted form, and cites Exemption (a) of the Public Records Law and numerous statutes for redacting the records. See G. L. c. 4, § 7(26)(a). The Office indicates it does not possess other responsive 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, 545-46 (1977).

Darian Roberts, Esq. SPR25/0570 Page 3 March 12, 2025 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. G. L. c. 66, § 10B In its February 27th response, the Office cites G. L. c. 66, § 10B (limiting release of data concerning persons who own or possess firearms, home addresses of public employees and their family members, victims of crimes, and family planning services). Under G. L. c. 66, § 10B, the Office argues the following: The name(s) of payees in the requested records associated with the Plymouth County Sheriff’s Department dated May 30, 2023, with payment made on June 17, 2023, are exempt from disclosure under the statutory exemption, M.G.L. c. 4, § 7(26)(a), in connection with M.G.L. 66 § 10B. Based on the information provided in the Office’s response, it is unclear how the redacted names of payees constitute any of the types of records contemplated under G. L. 66, § 10B. The Office must clarify this. G. L. c. 119, § 51F and 42 U.S.C. Ch. 67 In its response, the Office cites G. L. c. 119, § 51F, which provides in pertinent part as follows: The department [of children and families] shall maintain a central registry of information sufficient to identify children whose names are reported under sections 51A to 51B. Data and information relating to individual cases in the central registry shall be confidential and shall be made available only with the approval of the commissioner or upon court order G. L. c. 119, § 51F. The Office also cites 42 U.S.C. Ch. 67 (governing federal Office of Child Abuse and Neglect, and establishing grants to prevent child abuse and neglect). Under G. L. c. 119, § 51F and 42 U.S.C. Ch. 67, the Office argues the following:

Darian Roberts, Esq. SPR25/0570 Page 4 March 12, 2025 The name(s) of payees in the requested records associated with the Department of Children and Families, dated October 4, 2023, with payments made on October 16, 2023, are exempt from disclosure under the statutory exemption, M.G.L. c. 4, § 7(26)(a), in connection with M.G.L. 119, § 51F and 42 U.S.C. c. 67, to protect the names of children. Based on the information provided in the Office’s response, it is unclear how the redacted names constitute the type of records contemplated under G. L. c. 119, § 51F. Additionally, it is unclear how 42 U.S.C. Ch. 67 operates through Exemption (a) of the Public Records Law to permit the redaction of the names. The Office must clarify these matters. 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,

Darian Roberts, Esq. SPR25/0570 Page 5 March 12, 2025 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 response, the office argues the following under CORI: The name(s) of payees in the requested records associated with the Department of Correction dated August 16, 2024, with payments made on September 5, 2024, are exempt from disclosure under the statutory exemption, M.G.L. c. 4, § 7(26)(a), in connection with the CORI statute, M.G.L. c. 6, §§ 167, 172. Based on the Office’s response, I find that the Office has not met its burden to redact the names and case numbers under Exemption (a) and CORI. Specifically, it is not clear how the redacted information constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Office must clarify this. Burden of Specificity In addition to the redaction of payee names discussed in the Office’s February 27th response, and addressed above, the Office also appears to have redacted other information from the records. The Office is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact records. Based on Office’s response, it is unclear which exemption the Office is citing in order to redact multiple data fields contained in the requested records. 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511; 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). 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.

Darian Roberts, Esq. SPR25/0570 Page 6 March 12, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack