Attorney General v. District Attorney for the Plymouth District ( 2020 )

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SJC-12722
ATTORNEY GENERAL vs. DISTRICT ATTORNEY FOR THE PLYMOUTH
DISTRICT & others.1
Suffolk. November 5, 2019. - March 12, 2020.
Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.
Public Records. Criminal Offender Record Information. District
Attorney.
Civil action commenced in the Superior Court Department on
November 23, 2016.
The case was heard by Rosemary Connolly, J., on a motion
for summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Thomas R. Kiley, Special Assistant Attorney General
(Meredith G. Fierro also present) for the defendants.
Carrie Benedon, Assistant Attorney General, for the
plaintiff.
Rebecca Jacobstein, Committee for Public Counsel Services,
& Lindsay M.K. Custer, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.
1 District Attorney for the Middle District and District
Attorney for the Cape and Islands District.
2
GANTS, C.J. A reporter for Boston Globe Media Partners,
LLC (Globe), made a public records request pursuant to G. L.
c. 66, § 10 (public records law) to each of the offices of the
Commonwealth's eleven district attorneys and to the office of
the Attorney General for information stored in an internal
electronic case database maintained by each of these offices
(database). Specifically, the Globe sought data tables
containing the following twenty-three categories of information
for each criminal case tracked by the district attorneys and the
Attorney General in their databases:
"[1] Case ID Number . . . ; [2] Offense Date; [3] Case
filing Date; [4] Docket number; [5] Court name where the
case was handled; [6] Criminal count number; [7]
Charge/crime Code . . . ; [8] Charge/crime Description
. . . ; [9] Charge/crime Type . . . ; [10] Department that
filed the charge; [11] Way charge was initiated (Ex: grand
jury indictment, filed by police . . . etc.); [12]
Defendant ID Num (Internal tracking number used by DA's
office to identify defendant); [13] Defendant
Race/Ethnicity; [14] Defendant Gender; [15] Judge's Name
who handled disposition; [16] Disposition Date; [17]
Disposition Code; [18] Disposition Description; [19]
Disposition Type; [20] Disposition/sentence[] recommended
by prosecutor for each charge; [21] Sentence Type; [22]
Sentence Description; [23] Case status."
All of the offices complied with the request except for
those of the district attorneys for the Plymouth District, the
Middle District, and the Cape and Islands District (the district
attorneys). The Globe appealed to the supervisor of records
(supervisor) to determine whether the requested information
sought from the databases are public records that must be
3
disclosed under the public records law. The supervisor
determined that the information constitutes public records and
ordered the district attorneys to produce the requested data.
The district attorneys declined to do so, and the supervisor
referred the matter to the Attorney General, who commenced an
action seeking a declaration that the requested data are public
records. A Superior Court judge allowed the Attorney General's
motion for summary judgment and entered a judgment declaring
that the Globe's request seeks public records that must be
disclosed. We granted the district attorneys' motion for direct
appellate review.
On appeal, the district attorneys argue that we should
reverse the declaratory judgment for two reasons: first, that
under G. L. c. 4, § 7, Twenty-sixth (a), these records are
"specifically or by necessary implication exempted from
disclosure" under the Criminal Offender Record Information Act,
G. L. c. 6, §§ 167-178B (the CORI act); and second, that the
Globe's request requires them not merely to disclose existing
records but to create a computer program to extract the data and
create a new report, which exceeds what is required under the
public records law.
We conclude that the data sought by the Globe from the
district attorneys would be "specifically or by necessary
implication exempted from disclosure" under the CORI act if the
4
individuals whose cases were tracked by this data could be
directly or indirectly identified, because a criminal history of
these individuals could then be compiled from this data that may
be more extensive than what members of the public are permitted
to obtain under the CORI act. We also conclude that if the
court case docket number (docket number) for each case were
segregated and redacted from the remaining categories of
information, these individuals could not be directly or
indirectly identified from this data. We also conclude that a
request such as this, which requires the extraction of
categories of information from an existing database, does not
impose burdens on public record holders that exceed what is
required under the public records law. We therefore affirm the
judgment only in part and declare that the district attorneys
must disclose to the Globe twenty-two of the twenty-three
categories of information requested, excising from the
disclosure the docket number for each case requested.2
Statutory background. This case requires us to attempt to
harmonize the language and legislative purpose of two statutes:
the public records law, G. L. c. 66, § 10, and the CORI act,
G. L. c. 6, §§ 167-178B.
2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
5
1. The public records law. The public records law, G. L.
c. 66, § 10, governs the public's right to access records and
information held by State governmental entities. Under the
public records law, anyone has the right to access or inspect
"public records" upon request. G. L. c. 66, § 10 (a). "The
primary purpose of the [public records law] is to give the
public broad access to governmental records." Worcester Tel. &
Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378,
382-383 (2002). In enacting the public records law, the
Legislature recognized that "[t]he public has an interest in
knowing whether 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), and that "greater access to
information about the actions of public officers and
institutions is increasingly . . . an essential ingredient of
public confidence in government," New Bedford Standard-Times
Publ. Co. v. Clerk of the Third Dist. Ct. of Bristol, 377 Mass.
404, 417 (1979) (Abrams, J., concurring).
"Public records" are broadly defined 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 Massachusetts governmental
entity. G. L. c. 4, § 7, Twenty-sixth. But "[n]ot every record
6
or document kept or made by [a] governmental agency is a 'public
record.'" Suffolk Constr. Co. v. Division of Capital Asset
Mgt., 449 Mass. 444, 454 (2007). The Legislature has identified
twenty categories of records that fall outside the definition of
"public records" and are consequently exempt from disclosure
under the public records law. G. L. c. 4, § 7, Twenty-sixth
(a)-(u). Here, only one exemption has been claimed by the
district attorneys: G. L. c. 4, § 7, Twenty-sixth (a)
(exemption [a]) excludes records from disclosure where they are
"specifically or by necessary implication exempted from
disclosure by statute."
A public record holder may invoke exemption (a) as the
basis for withholding requested records where another statute --
the "exempting statute" -- expressly prohibits disclosure. See,
e.g., Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,
544 n.5 (1977), citing G. L. c. 167, § 2 (copies of bank
examination reports "shall be furnished to such bank for its use
only and shall not be exhibited to any other person . . .
without the prior written approval of the commissioner"); G. L.
c. 111B, § 11 (alcohol treatment records "shall be
confidential"); G. L. c. 41, § 97D (all reports of rape or
sexual assault "shall not be public reports"). Alternatively, a
record may be withheld where the exempting statute protects the
record from disclosure by "necessary implication," such as where
7
the exempting statute prohibits disclosure as a practical
matter. See, e.g., Champa v. Weston Pub. Schs., 473 Mass. 86,
91 n.8 (2015) (Federal statute "does not expressly prohibit
disclosure of 'education records,' but it does condition receipt
of Federal funds on the nondisclosure of education records").
Under the public records act, "a presumption shall exist
that each record sought is public and the burden shall be on the
defendant agency or municipality to prove, by a preponderance of
the evidence, that such record or portion of the record may be
withheld in accordance with state or federal law." G. L. c. 66,
§ 10A (d) (1) (iv). Therefore, the burden rests with the
district attorneys to prove that the CORI act specifically or by
necessary implication exempts the requested records from
disclosure.
2. The CORI act. First enacted in 1972, the CORI act
centralized the collection and dissemination of criminal record
information in the Commonwealth. St. 1972, c. 805. See New
Bedford Standard-Times Publ. Co., 377 Mass. at 413. It created
a unified management system for all criminal record information,
allowing, for the first time, the compilation of a comprehensive
State criminal history for each offender (CORI report). St.
1972, c. 805, § 1. It also strictly limited dissemination of
those State-compiled criminal histories to criminal justice
agencies and other entities specifically granted access by
8
statute. Id. By imposing these restrictions, the Legislature
intended to address the need of criminal justice agencies to
access criminal offender information while "embedded[ing] in the
statutory public policy of Massachusetts" its "interest in
promoting the rehabilitation and reintegration into society of
former criminal defendants." Globe Newspaper Co. v. Fenton, 819
F. Supp. 89, 97 (D. Mass. 1993) (Fenton).
In the following years, groups such as employers, victim
advocates, and the press began to voice dissatisfaction with the
inaccessibility of criminal record information and challenged
the constitutionality of the CORI act and related provisions.
See, e.g., New Bedford Standard-Times Publ. Co., 377 Mass. at
405; Fenton, 819 F. Supp. at 90; Globe Newspaper Co. v. Pokaski,
684 F. Supp. 1132, 1132 (D. Mass. 1988), aff'd in part and
reversed in part, 868 F.2d 497 (1st Cir. 1989) (challenging
constitutionality of criminal record sealing under G. L. c. 276,
§ 100C). After years of debate and gradual modification, see,
e.g., St. 1990, c. 319; St. 1977, c. 691, the CORI act was
substantially revised in 2010 by the enactment of CORI reform.
St. 2010, c. 256. See Massing, CORI Reform --Providing Ex-
Offenders with Increased Opportunities without Compromising
Employer Needs, 55 Boston Bar J. 21, 21 (2011) (discussing
statutory history).
9
CORI reform created a new agency, the Department of
Criminal Justice Information Services (DCJIS), to manage "data
processing and data communication systems . . . designed to
ensure the prompt collection, exchange, dissemination and
distribution of such public safety information as may be
necessary for the efficient administration and operation of
criminal justice agencies and to connect such systems directly
or indirectly with similar systems in this or other [S]tates."
G. L. c. 6, § 167A (c). See St. 2010, c. 256, § 8 (c). In
turn, DCJIS developed iCORI, defined as "[t]he [I]nternet-based
system used in the Commonwealth to access CORI and to obtain
self-audits." 803 Code Mass. Regs. § 2.02 (2017).
CORI reform also significantly expanded the availability of
CORI reports. See St. 2010, c. 256, § 21. Where before only
criminal justice agencies and a narrow group of statutorily
authorized employers and government agencies could access CORI
reports, CORI reform created a tiered system of access to CORI
based on the identity of the requestor. See id. See also 803
Code Mass. Regs. § 2.05(2) (2017). For example, under the
tiered system, "[c]riminal justice agencies may obtain all
criminal offender record information, including sealed records,
for the actual performance of their criminal justice duties."
G. L. c. 6, § 172 (a) (1). Members of the general public have
much more limited access. In the tier of "open access," any
10
member of the general public, upon written request, may obtain a
limited amount of CORI about a person: felony convictions from
the last ten years that were punishable by imprisonment of five
years of more, all felony convictions from the past two years,
misdemeanor convictions from the past year, and information
regarding custody status and placement if the person is
incarcerated or on probation or parole. G. L. c. 6,
§ 172 (a) (4).3 The commissioner of DCJIS also may provide
access to CORI to persons other than those entitled to obtain
access where he or she finds that such dissemination "serves the
public interest." G. L. c. 6, § 172 (a) (6).
CORI reform also substantially decreased the waiting period
for automatic sealing of criminal records under G. L. c. 276,
§ 100A, and expanded the availability of discretionary sealing
to continuances without a finding.4 See St. 2010, c. 256, § 128;
3 In the tier of "standard access," prospective employers
and landlords who make a request for a CORI report from the
Department of Criminal Justice Information Services (DCJIS)
regarding prospective employees or tenants receive more
information than the general public but less than criminal
justice agencies: pending criminal charges, including cases
continued without a finding that have yet to be dismissed, and,
unless sealed, misdemeanor convictions from the last five years
and felony convictions from the last ten years. G. L. c. 6,
§ 172 (a) (3).
4 The waiting period to seal misdemeanor convictions was
reduced from ten years to five years, and for felony
convictions, from fifteen years to ten years. See St. 2010,
c. 256, § 128; Commonwealth v. Pon, 469 Mass. 296, 306 n.17
(2014). In 2018, as part of the criminal justice reform bill,
11
Commonwealth v. Pon, 469 Mass. 296, 305-306 (2014). "These
reforms, coupled with the procedural protections aimed at
minimizing discrimination in the hiring process, strongly
indicate that the Legislature was concerned with the collateral
consequences of criminal records and sought to make sealing
broadly available to individuals whose criminal histories or
records no longer presented concerns of recidivism." Pon, supra
at 306.
Despite the limitations imposed by the CORI act on the
scope of information that members of the general public,
employers, and landlords are entitled to receive in a CORI
report, the CORI act does not prohibit anyone from attempting to
obtain more information about the criminal history of a
particular individual from court records or from police daily
logs or arrest registers, which are presumptively public.5 See
the waiting period to seal misdemeanor convictions was further
reduced from five years to three years, and for felony
convictions, from ten years to seven years. See St. 2018,
c. 69, § 186.
5 We say that these records are presumptively public because
court records involving adults or juveniles adjudicated as
adults may be impounded, sealed, or expunged, juvenile court
records are closed to the public, entries regarding juvenile
arrests must be removed from police logs, and police logs must
be redacted where an offense is expunged. See Republican Co. v.
Appeals Court, 442 Mass. 218, 223 (2004) (court records can be
impounded and made unavailable for public inspection upon
showing of good cause); G. L. c. 276, §§ 100A, 100B, 100C
(sealing of certain probation files and court records); G. L.
c. 276, §§ 100F, 100G, 100H, 100J (expungement eligibility and
12
G. L. c. 6, § 172 (m) (declaring that "chronologically
maintained court records of public judicial proceedings" and
"police daily logs, arrest registers, or other similar records
compiled chronologically" are "public records"). Those who are
frustrated by the amount of information available to them in a
CORI report and want to obtain a complete criminal history can
go to the clerk's office in every court house, search for every
case under the individual's name, and review the court file.
They would be limited in this endeavor only by the practical
constraints of time and expense; obtaining someone's criminal
history in this piecemeal fashion does not violate the CORI act.
See G. L. c. 6, § 178.6
Discussion. We now turn to our review of the motion for
summary judgment. "Our review of a motion judge's decision on
summary judgment is de novo, because we examine the same record
procedures); G. L. c. 41, § 98F (entries regarding juvenile
arrests); G. L. c. 276, § 100L (police logs must be redacted
where case is expunged).
6 It would, however, be a crime for a member of the public,
under false pretenses, to obtain from DCJIS or a law enforcement
agency a more comprehensive criminal history regarding the
individual than what is available under "open access." See
G. L. c. 6, § 178. Moreover, CORI reform made it a crime for an
employer to request that a prospective employee provide the
employer with his or her CORI report. See G. L. c. 6, § 172
(d). Because individuals are authorized to receive a full and
unrestricted CORI report regarding their own criminal history,
G. L. c. 6, § 175, this provision ensures that employers can
access only that information to which they are statutorily
entitled.
13
and decide the same questions of law." Kiribati Seafood Co. v.
Dechert LLP, 478 Mass. 111, 116 (2017).
1. Exemption (a): "specifically or by necessary
implication" of the CORI act. The district attorneys assert
that under exemption (a) the Globe's requested categories of
information from the databases are "specifically or by necessary
implication" exempted from disclosure under the CORI act. In
determining whether records are "specifically or by necessary
implication" exempted from disclosure, we must exercise
considerable caution. "Because of the [public records act's]
presumption in favor of disclosure, we have said that the
statutory exemptions must be strictly and narrowly construed."
Globe Newspaper Co. v. District Attorney for the Middle Dist.,
439 Mass. 374, 380 (2003) (Middle District), quoting General
Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798,
801-802 (1999). We have also said that, where the exemption
from disclosure derives from the CORI act, "it must be construed
narrowly." Middle District, 439 Mass. at 383.
The Attorney General contends that the information sought
is not CORI as defined in G. L. c. 6, § 167, and therefore not
"specifically or by necessary implication exempted from
disclosure" under the CORI act, because the Globe did not
request the names of the defendants in the database. It is
certainly true that the definition of CORI makes clear that it
14
includes only records and data about "identifiable" individuals,
and that "[c]riminal record information shall not include . . .
files in which individuals are not directly or indirectly
identifiable." G. L. c. 6, § 167. But the absence of
defendants' names in the data request does not mean that the
individuals whose data are in the district attorneys' databases
cannot be identified.
Where the data request includes docket numbers, the
identity of the individuals in the requested databases would be
"indirectly identifiable." As set forth in Rule 5(a)(2) of the
Uniform Rules on Public Access to Court Records (Uniform Rules),
Mass. Ann. Laws Court Rules, Trial Court Rules, at 1007
(LexisNexis 2018), 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.
Once a person in possession of the requested database knows
the name of the criminal defendant from the docket number, that
person would be able to link that name to the defendant's
internal identification number -- which is one of the twenty-
three categories of information requested. The database could
then be searched for all cases with that same defendant
15
identification number, and a criminal history of the defendant
could be compiled.
To be sure, this criminal history would be less
comprehensive than that compiled by DCJIS, because it would
include only the cases prosecuted by a particular district
attorney's office rather than all criminal cases in the
Commonwealth in which the defendant was arraigned.7 But if, as
here, the requestor seeks to obtain the same categories of
information from all the district attorneys and from the
Attorney General, the requestor would be able to cobble together
something akin to a Statewide criminal history of the defendant
that may provide substantially more information about the
defendant's criminal history than a member of the public could
obtain through a DCJIS CORI query.
Additionally, obtaining an identifiable individual's
criminal history through a public records request strips that
individual of statutory protections granted in CORI reform. For
example, G. L. c. 6, §§ 167 and 172 (g), allow any individual,
without a fee, to obtain through a self-audit the names of all
persons and entities, other than criminal justice agencies, that
have made queries to request that individual's CORI. But if a
7 The record before us does not indicate whether each of the
district attorneys uses the same defendant identification number
for an individual.
16
criminal history could be compiled through a public records
request, that individual would not be able to learn that someone
had obtained his or her criminal history. Moreover, in contrast
with those persons who receive an individual's criminal history
through a DCJIS request, there is no legal prohibition against
further dissemination of a criminal history compiled through a
public records request. Compare G. L. c. 6, § 172 (f) ("A
requestor shall not disseminate criminal offender record
information except upon request by a subject" of query).
The Legislature, when it enacted CORI reform and granted
broader access to CORI reports while simultaneously enhancing
protections for individuals with criminal records, sought to
"recalibrate the balance between protecting public safety and
facilitating the reintegration of criminal defendants by
removing barriers to housing and employment." Pon, 469 Mass. at
307. In light of exemption (a), the public records law cannot
be interpreted to permit members of the general public to make
an end run around the CORI restrictions by allowing them to
generate criminal histories of individuals through public
records requests to prosecutors, and thereby obtain a more
extensive criminal history than they would receive through a
DCJIS query.
The Trial Court sought to avoid a comparable end run around
the CORI statutory scheme when it crafted limitations on the use
17
of its public Internet portal under the Uniform Rules. Under
those rules, a member of the general public may obtain
electronic access to the name of the defendant and the court
docket only if he or she knows the docket number of the case;
one cannot conduct a search of a defendant by name and obtain
the dockets and case information for all the criminal cases that
relate to that defendant. See Rule 5(a)(2) of the Uniform
Rules. The rules committee of the Trial Court reasoned that
"[i]f the Trial Court were to provide the public with the
ability to remotely search criminal cases by a defendant's last
name, which could essentially reveal a defendant's entire
criminal history, it could thwart the careful balance between
access and privacy struck by the Legislature in enacting the
CORI statute." Notes to Rule 5(a)(2) of the Uniform Rules,
Mass. Ann. Laws Court Rules, Trial Court Rules, at 1009
(LexisNexis 2018). See id., quoting State House News Service,
Nov. 18, 2009 (statement of Sen. Creem) (intent of CORI reform
was to strike "a great balance . . . between providing
information that the public has a right to know and protecting
people's privacy"). The rules committee also noted that the
limitations imposed on public access to criminal history records
by the CORI act and the protections imposed by the act against
dissemination of those records by requestors "could not
reasonably be maintained if a defendant's criminal history could
18
be pieced together through a search on the Trial Court's
website." Notes to Rule 5(a)(2) of the Uniform Rules, supra.
See New Bedford Standard-Times Publ. Co., 377 Mass. at 415
(court records that "aggregate information concerning the
criminal history of an individual" may "threaten the privacy
interests the [CORI act] seeks to protect").
There is another important reason, rooted in CORI and
criminal justice reform, to exempt docket numbers from
disclosure in this case -- to avoid frustrating the legislative
purpose regarding the sealing and expungement of cases, because
"[s]ealing is a central means by which to alleviate the
potential adverse consequences in employment, volunteering, or
other activities that can result from the existence of such
records." Pon, 469 Mass. at 307, citing G. L. c. 276, §§ 100A,
fifth par., and 100C, fourth par.
Under G. L. c. 276, § 100A, "[a]ny person having a record
of criminal court appearances and dispositions in the
commonwealth on file with the office of the commissioner of
probation" may request that the commissioner seal the file. If
the requestor satisfies all the statutory conditions, "[t]he
commissioner shall comply with the request." See id. (setting
forth statutory conditions). In addition, under G. L. c. 276,
§ 100C, the commissioner shall seal the record of court
appearances and dispositions recorded "[i]n any criminal case
19
wherein the defendant has been found not guilty by the court or
the jury, or a no bill has been returned by the grand jury, or a
finding of no probable cause has been made by the court." In
all such sealed cases, the commissioner must notify the clerk of
the court where the proceeding took place of the sealing, who
shall seal the court record. G. L. c. 276, §§ 100A, 100C.
Where the record is sealed, if anyone other than a law
enforcement agency searches for the court record, the court
shall report "that no record exists." G. L. c. 276, § 100C.
Under G. L. c. 276, §§ 100I and 100K, with respect to some
criminal offenses that occurred before the offender was twenty-
one years of age, under certain circumstances, the person may be
eligible for expungement of the criminal record for a particular
offense by a court order. See G. L. c. 276, §§ 100I, 100J, 100K
(setting forth statutory conditions and exclusions). Where a
criminal record is expunged by order of the court, the clerk of
the court where the criminal record was created and the
commissioner of DCJIS must expunge the records within their
custody and "order all criminal justice agencies to expunge all
publicly available police logs." G. L. c. 276, § 100L (a). But
the records within the district attorneys' databases are not
included in this statutory directive. In fact, the sealing
statute does not require that a prosecutor be notified of the
20
subsequent sealing of a case he or she prosecuted. See G. L.
c. 276, §§ 100A, 100C.
With respect to the records request here, for cases that
have already been sealed or expunged, the production of docket
numbers presents no threat. If the Globe were to search a
docket number in the Trial Court's public Internet portal, it
would receive a message that no record exists -- protecting the
identity of the criminal defendant in that case. However, if
the record produced by the district attorneys has not yet been
sealed or expunged, the Globe would be able to obtain the name
of the criminal defendant through the docket number and learn,
among other things, the nature of the offense and the
disposition of the case. And the Globe would still retain this
information even if the case were subsequently sealed or
expunged.
This access to identifiable information likely would not
present a serious threat to the legislative purpose of the
sealing and expungement statutes if the data request concerned a
single defendant or a single case. After all, if the Globe
obtains a single court record from a court house before that
case is sealed, the Globe may retain that information even if
the defendant were subsequently to seal the case. But where the
public records request, as here, seeks twenty-three categories
of information for every case in the district attorneys'
21
databases, the concern that the request will diminish the
effectiveness of a subsequent sealing or expungement -- and
undermine the Legislature's purpose in promulgating the sealing
and expungement statutes -- is far more significant.
We have recognized in a different context the potential
danger to privacy that can emerge from the compilation of vast
amounts of personal data. See Boston Globe Media Partners, LLC
v. Department of Pub. Health, 482 Mass. 427, 440 (2019)
(Department of Pub. Health).8 We have also recognized that the
public records law does not distinguish among requesters or
permit an inquiry "into the requestor's purpose for seeking a
particular record before determining whether to release it."
People for the Ethical Treatment of Animals, Inc. v. Department
of Agric. Resources, 477 Mass. 280, 290 n.12 (2017). If the
Globe is entitled to these databases through the public records
law, individuals and businesses that seek to gather and organize
this data for profit, such as those who sell data to persons or
entities who are conducting background checks, would be equally
entitled to access to these databases. "Where criminal records
8 Indeed, in that case, the Globe itself recognized "a
greater privacy interest in 'vertical compilations' that
'aggregate information about specific individuals,' such as an
individual's criminal record, than in 'horizontal compilations'
that 'provide a limited amount of information about many
people,' such as a telephone book." Boston Globe Media
Partners, LLC v. Department of Pub. Health, 482 Mass. 427, 441
(2019).
22
are increasingly available on the Internet and through third-
party background service providers, criminal history information
that is available only briefly to the public through official
means can remain available indefinitely, despite subsequent
sealing or impoundment." Pon, 469 Mass. at 304, citing Jacobs &
Crepet, The Expanding Scope, Use, and Availability of Criminal
Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 186-187, 203-208
(2008). See also Department of Pub. Health, 482 Mass. at 437
("Today's current information may be tomorrow's record protected
from public view . . . . To examine the Globe's request in a
vacuum is to ignore that an index from the present is entwined
with indices from the future").
Because the disclosure of docket numbers could lead to the
improper dissemination of criminal history about identifiable
individuals, the district attorneys contend that all twenty-
three categories of information must, as a necessary implication
of the CORI act, be withheld from disclosure. And if the public
records request were indivisible and our decision were limited
to giving the Globe all it requested or giving it none, we would
agree. But we need not, and do not, view the Globe's records
request as indivisible -- we may order the segregation and
redaction of a narrow portion of the requested records in order
to balance the presumption of public access with the protections
enacted in CORI reform.
23
Therefore, we conclude that the extensive database sought
here by the Globe is exempt from disclosure as a public record
by necessary implication of the CORI act and of the statutes
governing sealing and expungement unless the disclosure is
redacted to ensure that none of the records are directly or
indirectly identifiable to any person. We also conclude that
this can be accomplished only by redacting the category of
docket numbers from the database to be produced, because only by
redacting the docket numbers can these records be neither
directly nor indirectly identifiable to any person. Where the
docket number is redacted, the defendant identification number
need not be redacted, because it alone will not permit any
individual to be identifiable from either the records produced
or from publicly available court records.9
We recognize that barring docket numbers from being
produced for this records request requires us to distinguish our
holding in the Middle District case, which the Superior Court
judge relied upon heavily in her decision. In Middle District,
439 Mass. at 375, the Globe sought information from the Attorney
General and each district attorney regarding the docket number,
9 The docket number is thus the "key to the castle."
Although the defendant identification number may be used to
create a criminal history for an individual, as long as that
individual is not identifiable, the defendant identification
number may be produced and the history of an unidentified
individual may be compiled.
24
defendant name, municipality, and charge for each criminal case
pertaining to municipal corruption involving elected or
appointed officials or employees of cities and towns in the
Commonwealth. We concluded that a docket number "falls
squarely" within the definition of "chronologically maintained
court records of public judicial . . . proceedings" that are
"public records" under G. L. c. 6, § 172 (m), and must be
disclosed regardless of whether they are in the possession of
the court or the district attorney prosecuting the case. Middle
District, supra at 382. We declared:
"A record does not cease to be a 'court' record when it is
distributed to the parties to a case, here, to the district
attorney prosecuting the case. It retains its original
character as a 'court' record, and hence a 'public record,'
without regard to which entity has a copy. Put
differently, if the item sought is a court record that
could be obtained from the clerk's office, it is a public
record, and it may be obtained from any other government
official who also happens to have a copy of that same
public record."
Id. at 383-383.
But there are important distinctions which preclude the
holding in the Middle District case from controlling in this
case. In that case, the Globe's public records request was far
more narrow -- it only requested docket numbers associated with
a specific type of case and a specific type of defendant. See
Middle District, 439 Mass. at 375. That request would reveal
information about a defendant regarding a specific offense but,
25
in contrast with the data request in this case, it would not
permit the requester, armed with these docket numbers, to
compile a criminal history of these defendants based on the
other information contained in the data request.
The court itself effectively distinguished the
circumstances in the Middle District case from the circumstances
in the instant case when it declared:
"[A]llowing members of the press and the public to obtain
docket numbers from the district attorneys does not
undermine the purposes of the CORI statute. The CORI
statute is intended to protect privacy and to promote the
rehabilitation of criminal defendants, recognizing that
ready access to a defendant's prior criminal record might
frustrate a defendant's access to employment, housing, and
social contacts necessary to that rehabilitation. Requests
for docket numbers of particular types of cases, not being
framed with reference to any named defendant, do not
subvert the CORI statute. The CORI statute is not intended
to shield officials in the criminal justice system from
public scrutiny. Evaluation of a district attorney's
performance of necessity involves review of that district
attorney's cases, e.g., the types of cases prosecuted, the
results achieved, the sentences sought and imposed.
Requiring district attorneys to respond to public records
requests for docket numbers of particular types of cases
prosecuted by their offices facilitates that review without
undermining the CORI statute."
Id. at 384. In short, disclosure of the docket numbers in the
Middle District case did not undermine the protections or
purpose of the CORI statute; disclosure of docket numbers in
this case, however, if produced as part of the substantial
database of case information sought here, would undermine the
CORI statute by allowing the creation of criminal histories of
26
individuals that would not otherwise be available to members of
the general public though a query to DCJIS. This analysis
demonstrates why "a case-by case review is required to determine
whether an exemption applies." Matter of a Subpoena Duces
Tecum, 445 Mass. 685, 688 (2006).
We therefore declare that the district attorneys have
successfully met their burden of proving that disclosure of the
requested information would be exempt from disclosure under
exemption (a) of the public records law "by necessary
implication" of the CORI act and the sealing and expungement
statutes if the requested information were to include docket
numbers. However, if the docket numbers were segregated and
redacted from the requested information such that no individual
can be directly or indirectly identified from the information
obtained by the Globe, the other twenty-two categories of
information would not be exempt from disclosure "by necessary
implication" of these statutes.
2. Creation of a new record. The district attorneys also
argue that they do not have to fulfill the Globe's public
records request because it would require them to create a
computer program to compile information into a new electronic
record, a task not required under the public records law.
We have not previously addressed what constitutes the
creation of a new record. The disclosure obligation under the
27
public records law applies only to information that is in the
possession of a governmental entity, regardless of whether its
form is paper or electronic. See G. L. c. 66, § 10 (a) ("A
records access officer . . . shall at reasonable times and
without unreasonable delay permit inspection or furnish a copy
of any public record . . . provided that . . . the public record
is within the possession, custody or control of the agency or
municipality that the records access officer serves"); G. L.
c. 4, § 7, Twenty-sixth (public records are "materials or data,
regardless of physical form or characteristics, made or
received" by public entity). Thus, we understand § 10 (a) to
mean that a member of the public may not, through a public
records request, require an agency or municipality to create new
documents that do not already exist. See National Labor
Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 161-162
(1975) (refusing to order Federal agency to create "explanatory
material" through Freedom of Information Act request because
would require agency to create new documents); Guide to the
Massachusetts Public Records Law, Secretary of the Commonwealth,
Division of Public Records (updated Jan. 2017) at 9, 31. See
also Rep. A.G., Pub. Doc. No. 12, at 165 (1977) (public records
law generally does not require boards to prepare lists of public
information, but only requires that they permit inspection and
provide copies of records in their possession).
28
But where public records are in electronic form, as they
increasingly are and will be, a public records request that
requires a government entity to search its electronic database
to extract requested data does not mean that the extracted data
constitute the creation of a new record under the public records
law. This interpretation of the public records law is supported
by the regulations promulgated by the supervisor, who is
required to adopt regulations to implement the public records
law. See G. L. c. 66, § 1. Under those regulations, when a
governmental entity is designing or acquiring an electronic
record keeping system or database, it "shall ensure, to the
extent feasible" that it "allows for information storage and
retrieval methods permitting retrieval of public portions of
records to provide maximum public access." 950 Code Mass. Regs.
§ 32.07(1)(e)(2) (2017). The regulations declare:
"[F]urnishing a segregable portion of a public record shall
not be deemed to be creation of a new record. This applies
to a responsive record in the form of an extract of
existing data, as such data exists at the time of the
request and is segregable from nonresponsive and exempt
data."
950 Code Mass. Regs. § 32.07(1)(f).
The duly promulgated regulations of the supervisor "are
presumptively valid and 'must be accorded all the deference due
to a statute.'" Craft Beer Guild, LLC v. Alcoholic Beverages
Control Comm'n, 481 Mass. 506, 520 (2019), quoting Pepin v.
29
Division of Fisheries & Wildlife, 467 Mass. 210, 221 (2014).
"The burden of demonstrating invalidity rests squarely on the
party challenging the regulation," Craft Beer Guild, LLC, supra,
which here are the district attorneys, and they have not cited
the regulation or argued that it "is contrary to the plain
language of the [public records] statute and its underlying
purpose." Massachusetts Teachers' Retirement Sys. v.
Contributory Retirement Appeal Bd., 466 Mass. 292, 301 (2013),
quoting Duarte v. Commissioner of Revenue, 451 Mass. 399, 408
(2008).
Federal courts, in interpreting the Freedom of Information
Act (FOIA), 5 U.S.C. §§ 552 et seq., have also held that
electronic database searches do not involve the creation of new
records. See National Sec. Counselors v. Central Intelligence
Agency, 898 F. Supp. 2d 233, 270 (D.D.C. 2012) ("In responding
to a FOIA request for 'aggregate data,' . . . an agency need not
create a new database or reorganize its method of archiving
data, but if the agency already stores records in an electronic
database, searching that database does not involve the creation
of a new record. Likewise, sorting a pre-existing database of
information to make information intelligible does not involve
the creation of a new record . . ."); People for the Am. Way
Found. v. United States Dep't of Justice, 451 F. Supp. 2d 6, 14
30
(D.D.C. 2006). See also Yeager v. Drug Enforcement Admin., 678
F.2d 315, 321 (D.C. Cir. 1982). As one Federal court reasoned:
"[S]orting a pre-existing database of information to make
information intelligible does not involve the creation of a
new record because . . . computer records found in a
database rather than a file cabinet may require the
application of codes or some form of programming to
retrieve the information. . . . Sorting a database by a
particular data field (e.g., date, category, title) is
essentially the application of codes or some form of
programming, and thus does not involve creating new records
or conducting research -- it is just another form of
searching that is within the scope of an agency's duties in
responding to" public records requests" (quotations,
citation and alteration omitted).
National Sec. Counselors, supra at 270.
Several State courts have also held that conducting a query
in an electronic database does not constitute the creation of a
new record for purposes of their States' public records laws.
See, e.g., American Civ. Liberties Union of Ariz. v. Arizona
Dep't of Child Safety, 240 Ariz. 142, 148 (Ct. App. 2016);
Commonwealth of Pa., Dep't of Envtl. Protection v. Cole, 52 A.3d
541, 547 (Pa. Commw. Ct. 2012); Public Employees' Retirement
Sys. of Nev. v. Nevada Policy Research Inst., Inc., 134 Nev.
669, 676-678 (2018).
A records custodian is obligated to provide access to
existing files, "regardless of physical form or characteristics"
(emphasis added). G. L. c. 4, § 7, Twenty-sixth. If public
records are maintained in an electronic database, they must be
searchable and accessible in a reasonable and useable format so
31
as not to undermine the purpose of the public records law. In a
world in which records and information are increasingly stored
in electronic databases, a public record that would otherwise be
subject to the public records law "does not become immune from
production simply by virtue of the method the [public entity]
employs to catalogue the document," or track the information.
American Civ. Liberties Union of Ariz., 240 Ariz. at 148,
quoting Lake v. Phoenix, 220 Ariz. 472, 481 (Ct. App.), rev'd in
part, 222 Ariz. 5147 (2009).
Here, the requested information already exists in the
district attorneys' databases, which contain certain data fields
for each case.10 Other district attorneys and the Attorney
General, with comparable databases, have already complied with
the Globe's records request, so we know it is possible. The
Globe's request, as limited by this decision, requires the
district attorneys to segregate and redact from disclosure the
category of docket numbers, but otherwise the district attorneys
need only provide a copy of preexisting data fields as
requested. We conclude that the segregation and extraction of
10That is not to say that every case in each database will
contain information in every field requested. For example, with
respect to the collection of data concerning the defendant's
race and ethnicity, the district attorneys' practices vary. But
to the extent that the information exists for each case, and it
already has been entered into the district attorneys' databases,
it must be produced.
32
the requested information from the existing fields in the
district attorneys' databases is not the creation of a new
record but is instead the type of data recovery that is expected
in a digital world under the public records law. To be sure, we
do not underestimate the burden on staff time and resources that
the Globe's records request may impose on the district
attorneys, given the breadth of its scope, but the district
attorneys may assess a reasonable fee for the actual cost of
producing the requested information, consistent with G. L.
c. 66, § 10 (d).
Conclusion. We affirm so much of the judgment as orders
the district attorneys within ninety days to produce the
requested information from their case management databases,
except for the docket numbers of each case, which shall be
segregated and redacted from the information provided. We also
affirm so much of the judgment as declares that the categories
of requested data are public records under the public records
law and are not exempt from disclosure, but only to the extent
that these records do not directly or indirectly identify any
defendant, which requires the segregation and redaction of
docket numbers from the records to be produced.
So ordered.