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Healey v. Cruz

Superior Court of Massachusetts, Suffolk

November 27, 2018

Maura HEALEY[1]
v.
Timothy J. CRUZ[2] et al.[3]

          MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

          ROSEMARY CONNOLLY, Justice of the Superior Court

         INTRODUCTION

          The Commonwealth’s Attorney General seeks to enforce an administrative decision from the Supervisor of (Public) Records in the Secretary of State’s Office ("the Supervisor") ordering these defendants to comply with a Boston Globe request for various pieces of information and data, found in their offices’ case management software, concerning both open and closed criminal investigations and court cases handled in the defendants’ offices. As presented, it may seem as though this case pits the public’s right to access the records and information held by the district attorneys under G.L.c. 66, § 10 ("the Public Records Law"), against the privacy interests of people accused of, and convicted of, crimes under the Commonwealth’s Criminal Offender Record Information statute ("CORI"). That, however, is a false choice. The Public Records Law does not recognize a blanket exemption for records that may otherwise be public simply because those records are held at a district attorney’s office. As explained below, both the Public Records Law and CORI protect critical public and personal interests, and both must, and can, be protected by examining the particular requests and determining whether each is, in fact, already information in the public domain, or whether it is, in fact a CORI-protected record.

         The Commonwealth brought a motion for Summary Judgment pursuant to Mass.R.Civ.P. 56 on Counts 1-5 of the complaint seeking a declaration that certain categories of information requested are subject to disclosure in response to the Boston Globe’s public records request. Upon review of the briefs, and after oral argument, the court agrees with the Commonwealth and enters summary judgment in favor of the Commonwealth on Counts 1-5, and shall enter the requested declaration.[4]

         This genesis for this case arises from a Boston Globe reporter’s ("requestor") request to obtain categories of criminal case related information that is stored within the DAMION databases[5] maintained at each of the Commonwealth’s eleven district attorney’s offices and the Commonwealth’s Attorney General’s office. After negotiations between the requestor and the public law enforcement offices about the scope of the requests, all of the offices complied with the request, except for the three defendants in this action. These three defendants, the district attorneys for Plymouth County, Worcester County, and the Cape and Islands, declined to produce the requested information. In support of their position, they asserted, inter alia, that any response to the requested information would contain Criminal Offender Record Information which is specifically protected by the CORI statute, and therefore they were prohibited from providing the requested information. The requestor then petitioned the Supervisor to determine whether the requested information is a public record and thus properly disclosed. The Supervisor determined that the information was public and ordered these defendants to produce the information. However, the defendants again declined to produce the records, maintaining that CORI exempted the requested information from the definition of public records.

          The Supervisor then referred the matter to the Attorney General, who filed this action seeking a declaration that the requested information is a public record and asking the court to enter an order requiring the defendants to produce the records. The Attorney General filed this motion for summary judgment and for the reasons that follow, the Attorney General’s motion is ALLOWED, and a declaration shall enter stating that the Requestor’s requests, are public records and must be disclosed.

         FACTS

         The following facts are drawn from the parties’ statement of agreed facts and are not in dispute.

         A. The Public Records Request

         On January 6, 2015, the Boston Globe requestor submitted a request to these defendants and others pursuant to the Public Records Law. The request sought a copy of the information contained within the defendants’ databases primarily from DAMION and as expressed in spreadsheets, including all of the rows, columns, and column titles. Specifically, the requestor sought twenty-two categories of information:[6] (1) case ID number; (2) offense date; (3) case filing date; (4) court name where the case was handled; (5) criminal count number; (6) charge/crime code; (7) charge/crime description; (8) charge/crime type; (9) department that filed the charge; (10) way charge was initiated; (11) defendant ID number; (12) defendant race/ethnicity; (13) defendant gender; (14) name of judge who handled disposition; (15) disposition date; (16) disposition code; (17) disposition description; (18) disposition type; (19) disposition or sentence recommended by prosecutor for each charge; (20) sentence type; (21) sentence description; and (22) case status. It is important to note that the requester did not seek the names of any criminal defendant or accused in any of the requests.

         To reply to these requests, as the custodians of these records, each office would presumably need to access and compile responsive data from the offices’ case management software known as DAMION.

         B. DAMION Case Management Software

         The DAMION database is an internal case management software that each of the district attorneys’ offices use to track relevant case data for open criminal cases in their offices. Use of the database is customized to needs of each office. Each office has a standalone software application of the DAMION program to manage their casework. The DAMION databases are not linked, connected, or networked between the offices. No office can access information contained in the respective office’s DAMION program across offices. While each office may use the database differently, there are several common entries, such as listing the name of the defendant, the court name, docket number, relevant dates, criminal charges, and the case disposition. Additionally, the database contains internal administrative information, unique to each office, including, for example, the office case identification number and the assistant district attorney assigned to the case. Assistant district attorneys and their administrative personnel input information into the database and, understandably, DAMION can only be accessed by employees in each of the offices. Once data is entered into the database, can be organized in a spreadsheet, and then viewed in a printouts or viewed on the computer screen.

         C. The Defendants’ Responses to the Requests

          Each of these defendants informed the requestor that information contained in their DAMION database was not a public record, citing various reasons. For example, the Worcester County District Attorney responded, stating, inter alia, that the requested information is protected by the attorney-client privilege because the assistant district attorneys use the database [DAMION] to communicate with the district attorney.[7]

         The Plymouth County District Attorney responded stating that no responsive record existed because the request would require his office to create a record compiling the data requested from the various files within their system. In other words, there was no existing document that was responsive to the request. The Plymouth County District Attorney further stated that he was prohibited from disclosing the requested information because the requestor was predominantly seeking information that was within the scope of CORI, which is exempt from public records disclosure. He also stated that his office could not fulfill the request because it would divert office personnel and would cause the computer system to run too slowly to meet the office’s day-to-day demands. The Cape and Islands District Attorney responded via letter, also stating that no responsive record existed; that the office was prohibited from disclosing the requested information under the CORI law; and that complying with the request would require his office to divert substantial office resources, which would negatively affect daily operations.

         D. Response by Supervisor of Public Records

         Upon learning that these defendants would not produce the requested information, the requestor next petitioned the defendants’ denial of his request to the Supervisor pursuant to G.L.c. 66, § 10(b), [8] to determine whether the requested information qualified as a "public record" as defined under the law. The Supervisor determined that the Worcester County District Attorney’s response was inadequate because he failed to explain specifically why the requested information was exempt as "attorney client" privileged. On May 18, 2015, the Supervisor issued an order requiring the Worcester County District Attorney to produce the requested information within ten days. The order further provided that if the Worcester County District Attorney planned to withhold any of the requested information, his office must establish specifically what exemption applied; and if his office planned to assert attorney-client privilege, then it must provide a privilege index.

         The Worcester County District Attorney responded to the Supervisor, maintaining that his office was not required to disclose the requested information, because: (1) the request essentially sought the office’s entire database and therefore lacked specificity; (2) the database contains communications protected by the attorney-client privilege; (3) the database itself is exempt from disclosure under G.L.c. 266, § 120F, which prohibits unauthorized access to computer systems; and (4) it would require the office to create a record for the requestor.

          The Worcester County District Attorney’s Office responded to the Supervisor in a letter to the Deputy Attorney stating that it believed that the Supervisor misapprehended the level of specificity that is required to establish an exemption to the Public Records Law. Within days of that letter, the Supervisor issued an administrative order that combined the requestor’s appeal from all ten responses he received from the district attorneys’ offices, including the three defendants in this case. The Supervisor ordered the defendants to provide to the requestor a revised written response within ten days.

         On August 24, 2015, the Cape and Islands District Attorney responded to the Supervisor stating the District Attorney again declined to produce the requested information because the request was CORI-protected and thus exempt from public records. The letter explained that the requestor sought case ID numbers and defendant ID numbers, which would allow the requestor to determine the identities of certain criminal defendants in violation of the CORI law. The Cape and Islands District Attorney further explained that the request for all criminal docket numbers was distinguishable from the current case law that addressed a request for docket numbers for certain types of criminal cases. In addition, the letter suggested that the requestor intended to create a private database of criminal case information for a commercial purpose and indicated that the Supervisor could deny the requestor’s appeal on that ground.

         Two days later, on August 26, 2015, the Plymouth County District Attorney again responded and stated that the Criminal Justice Information System ("CJIS") should be allowed to make the initial determination as to whether the requested information qualifies as CORI. Otherwise, they contended, by allowing the requestor to create a database that essentially mirrored the CJIS’s database they would violate the CORI law. Moreover, the requested information, when pieced together, could disclose the identities of criminal defendants, witnesses, and other individuals. The Plymouth County District Attorney reaffirmed his position that his office was not required to comply with the request because doing so would require his office to create a new record to comply with the request.

         On December 31, 2015, the Supervisor issued another order, requiring these three defendants to provide responsive records to the requestor within ten days, subject to any applicable Public Records Law exemptions. These defendants again declined to produce the records.[9]

         On June 30, 2016, the Supervisor referred the matter to the Attorney General to enforce its December 31, 2015 order. The Attorney General, thereafter, filed a complaint in the Superior Court seeking a declaration that the requested information is a public record and an order compelling the defendants to produce the information. The Attorney General now moves for summary judgment on counts 1-5 of its complaint and seeks a declaration stating that various categories of the requests are public records and subject to production and other categories must be disclosed because these defendants failed to make the requisite specific showing that the records are exempt under the Public Records Law.

         DISCUSSION

         I. Standard of Review

         "Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 118-19 (2010). "The moving party bears the burden of demonstrating the absence of a triable issue of fact on every relevant issue." Scholz v. Delp, 473 Mass. 242, 249 (2015). In determining whether the moving party is entitled to judgment as a matter of law, the evidence is viewed in the light most favorable to the nonmoving party. Harrison v. NerCentric Corp., 433 Mass. 465, 468 (2001). However, "the opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment." LaLonde v. Eissner, 405 Mass. 207, 209 (1989). "Conclusory statements, general denials, and factual allegations not based on personal knowledge are insufficient to avoid summary judgment." Madsen v. Erwin, 395 Mass, 715, 721 (1985) (internal modifications omitted). Here, the parties agree on the salient facts. They instead dispute the proper application of the public records law to this public records request. As explained below, on this record, the court concludes that the Attorney General is entitled to judgment as a matter of law.

         II. Public Records Law

          The Massachusetts Public Records Law, G.L.c. 66, § 10(a), provides that: "every person having custody of any public record, as defined in [G.L.c. 4, § 7, cl. 26], shall, at reasonable times and without unreasonable delay, permit it, or any segregable portion of a record which is an independent public record, to be inspected and examined by any person, under his supervision, and shall furnish one copy thereof upon payment of a reasonable fee."[10] The term "public records" is defined in G.L.c. 4, § 7, cl. 26, as "all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, ... unless such materials or data fall within the following exemptions ..." G.L.c. 4, § 7, cl. 26(a)-(u).[11] The Public Records Law permits the public to shine a light on the daily workings and operations of public offices and their employees thorough access to public records and data. The Legislature recognized that the public "has an interest in knowing whether their public servants are carrying out their duties in an efficient and law abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). Transparency in government operation and access to government information is believed to further enhance public confidence in government and its operation. See Worcester Tel. & Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378, 382-83 (2002).

          Under G.L.c. 66, § 10, the Public Records Law, the presumption is that all government records are public, unless an exemption applies. This presumption is set forth right in the body of the law. It states:

(c) [i]n any court proceeding pursuant to paragraph (b) there shall be a presumption that the record sought is public, and the burden shall be upon the custodian to prove with specificity the exemption which applies. If a records request is rejected on the basis of a public records exemption then the burden shifts to the record holder to assert an exemption under the Public Records Law with specificity. (Emphasis added.)

G.L.c. 66, § 10(c).

         Broad access to public records is further bolstered by the Court’s instruction that each must be reviewed to determine if a specific exemption applies. See People for the Ethical Treatment for Animals, Inc. v. Department of Agric. Resources, 477 Mass. 280, 281-82 (2017); In re Subpoena Duces recum, 445 Mass. 685, 688 (2006) ("[w]e have stated that a case-by-case review is required to determine whether an exemption applies").

         What constitutes a public record, in our electronic age, is not limited by its physical form or characteristics, as G.L.c. 4, § 7, cl. 26 recognized. Consequently, electronically stored data, though not in a paper record format nor kept in a metal file cabinet, is nonetheless a public record unless an exemption applies. It follows then, that these defendants, as the custodians of the requested information, must produce the requested information unless they prove that a specific exemption shields this information from the Public Record Law. See Georgiou v. Commissioner of Dep’t of Indus. Accidents, 67 Mass.App.Ct. 428, 431 (2006) (documents "held by agencies ... are presumed to be public records unless the [custodian] can prove with specificity that the documents or parts of the documents fall within one of the ... enumerated statutory exemptions") (emphasis added). Further, the enumerated exemptions to the Public Records Law must be "strictly construed." Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614 (1993).

         There are three exemptions that the defendants claim excuse their production of the requested information. that the records are: (1) materials that "are specifically or by necessary implication exempted from disclosure by statute" G.L.c. 4, § 7, cl. 26(a); (2) materials that qualify as "inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency" G.L.c. 4, § 7, cl. 26(d); and (3) "investigatory materials necessarily complied out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" G.L.c. 4, § 7, cl. 26 (f).[12] These objections to the requests can be viewed in the context whether or not the application of CORI precludes disclosure.[13] We turn next to an overview of the CORI statutory scheme.

         III. The Criminal Offender Records Information Law

          Massachusetts has enacted legislation to restrict the dissemination of a person’s criminal history, CORI, which is shorthand for criminal offender records information. The law seeks to strike a balance between public safety and an individual’s privacy. In part, its objective is to prevent stigmatizing people formerly involved in the criminal justice system whose information if widely known, might prevent a person’s successful reintegration in society.

         The legislature has defined CORI 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, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to [G.L.c. 276, § 58A] where the defendant was detained prior to trial or released with conditions under [G.L.c. 276, § 58A(2) ], sentencing, incarceration, rehabilitation, or release" (emphasis added). G.L.c. 6, § 167. The statute sets forth various limitations on who may access CORI and how CORI can be disseminated.[14]

         Over time, the Legislature has amended the statute. "In 2010, the Legislature enacted extensive reforms to the CORI scheme, extending access to official CORI records to more employers, housing providers, and other organizations, for limited use, and simultaneously broadening the scope of the sealing provisions to enable more individuals to shield their records from public purview." Commonwealth v. Pon, 469 Mass. 296, 297 (2014), citing St. 2010, c. 256. This amendment sought to fine-tune the balance between public safety and personal privacy interests. Specifically, the 2010 CORI reform implemented three significant changes: (1) extending access to more entities with an interest in acquiring CORI by creating a tiered access structure; (2) creating additional procedural protections for criminal defendants by limiting when prospective employers may question individuals about their criminal history; and (3) increasing the availability of the CORI law’s sealing protections. Id. at 303-06.

         To ensure the proper access to a person’s CORI, the 2010 CORI reform also created the Criminal Justice Information Services (CJIS); See G.L.c. 6, § 167A. CJIS maintains CORI in an electronic database, and allows tiered access to CORI depending on the type of entity or requestor seeking the information. See G.L.c. 6, § 172. By way of example only, law enforcement, or a ...


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