COMMONWEALTH OF MASSACHUSETTS SUFFOLK, SS. SUPERIOR COURT DEPARTMENT OF THE TRIAL COURT MAURA HEALEY, ATTORNEY GENERAL, Plaintiff, v. COMPLAINT L9 3L0 i TIMOTHY J. CRUZ, PLYMOUTH COUNTY Civil Action No. DISTRICT ATTORNEY, JOSEPH D. EARLY, JR., a, WORCESTER COUNTY DISTRICT ATTORNEY, .32 [52? 9% MICHAEL D. CAPE ISLANDS DISTRICT ATTORNEY, f: 3 g: 253- Defendants. 5% a? :3 . 33? COMPLAINT FOR DECLARATORY 2 -I I. INTRODUCTION 1. This is an action for declaratory judgment brought by the Attorney General, Maura Healey (the ?Attorney General?), on behalf of the Commonwealth, pursuant to the Massachusetts Public Records Law, G.L. c. 66, 10 (the ?Public Records Law?), and the Declaratory Judgment Act, G.L. c. 231A. The purpose of this declaratory judgment action is to determine the Defendants? obligations under the Public Records Law to furnish copies of certain records in their possession in response to requests by the Boston Globe for provision of such records. 2. The Defendants, as custodians of records, have received substantially Similar public records requests from a reporter for the Boston Globe (the ?Requester?) for data contained within their computer systems that track criminal court cases. The Defendants have declined to provide the requested records, relying on certain exemptions under the Public Records Law as well as statutory exemptions, including the Criminal Offender Record Information statute, G.L. c. 6, 167-172 (which limits the dissemination of records and data which concern an identi?able individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release) Law?) and on certain privileges such as the attorney-client communication privilege. It is the position of the Attorney General that the Public Records Law requires disclosure of the requested records, notwithstanding the CORI Law. The Attorney General recognizes the Defendants? concern that, while the Public Records Law may require them to furnish copies of records in their possession, the Law limits the dissemination of certain records. By bringing this action, the Attorney General seeks a declaration as to whether certain records in the Defendants? possession are public records that the Defendants must provide pursuant to the Public Records Law in response to a request. 11. JURISDICTION AND VENUE 3. This Court has jurisdiction over the subject matter of this action pursuant to G.L. c. 66, 10(b). 4. Venue is proper in this Court pursuant to G.L. c. 223, 5. PARTIES S. The Attorney General is the chief law enforcement of?cer of the Commonwealth, and brings this action to enforce compliance with the Public Records Law pursuant to G.L. c. 66, 10 and G.L. c. 12, 3. 2 6. District Attorney Timothy J. Cruz is the Plymouth County District Attorney (?Plymouth with a principal place of business located at 32 Belmont Street, Brockton, Massachusetts 02301. 7. District Attorney Joseph D. Early, Jr. is the Worcester District Attorney (?Worcester with a principal place of business located at 225 Main Street, G301, Worcester, Massachusetts 01608. 8. District Attorney Michael D. O?Keefe is the Cape Islands District Attorney (?Cape Islands with a principal place of business located at 3231 Main Street, Bamstable, Massachusetts 02630. 9. The Defendants are criminal justice agencies as de?ned in G.L. c. 6, 167. 10. This action is brought against the Defendants solely in their of?cial capacities as the custodians of records at issue in this action. IV. STATUTORY FRAMEWORK 11. The Public Records Law de?nes ?public records? as ?all books, papers. . .or other documentary materials or data, regardless of physical form or characteristics, made or received by any of?cer or employee of any agency. . .unless such materials or data fall within the following exemptions G.L. c. 4, 7, cl. 26 12. The Public Records Law provides that ?[e]very person having custody of any public record, as de?ned in clause twenty-sixth of section seven of chapter four, 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 3 person? and that custodians ?of a public record shall, within ten days following receipt of a request for inspection or copy of a public record, comply with such request.? G.L. c. 66, 10(a), 13. Records that fall within an exemption to the Public Records Law are not public records, including but not limited to G.L. c. 4, 7, cl. 26(a), covering materials or data that are ?specifically or by necessary implication exempted from disclosure by statute;? G.L. c. 4, 7, 26(0), covering materials or data relating to ?a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy? and G.L. c. 4, 7, cl. 26(f), covering ?[i]nvestigatory materials necessarily compiled out of the public view by law enforcement or other investigatory of?cials 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.? 14. The CORI Law restricts criminal justice agencies from disseminating to the public ?records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identi?able individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings. . .sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto.? G.L. c. 6, 167. However, the following are public records: 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, and of public judicial administrative or legislative 4 proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127.? G.L. c. 6, 172(m). 15. The Supreme Judicial Court has addressed the relationship between the Public Records Law and the Law, concluding that, ?there is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court?s records accessible to the public.? Globe Newspaper Co. v. DA for the Middle Dist.. 439 Mass. 374, 384 (2003). Thus, ?requests for docket numbers of particular types of cases, not being framed with reference to any named defendant, do not subvert the CORI statute.? 1d; (noting that the law is ?intended to protect privacy and to promote the rehabilitation of criminal 16. Records that fall under the attorney-client communication privilege are not public records. Suffolk Const. Co. v. Div. of Capital Asset Mgmt., 449 Mass. 444, 450 (2007). 17. Records that under the attorney work product doctrine as Opinion work product are not public records. DeRosa v. New Bedford, 471 Mass. 446, 458-459 (2015). 18. The requests for records here do not reference any named criminal defendants. The records sought largely consist of information contained in mint records accessible to the public. Nevertheless, the Defendants are concerned about how to comply with both the Public Records Law and CORI Law. 19. The Attorney General?s Of?ce brings this action pursuant to its authority to under G.L. c. 66, 10(b) to enforce the Public Records Law, following a referral from the Supervisor of Records within the Of?ce of the Secretary of the Commonwealth (the ?Supervisor?). V. FACTUAL ALLEGATIONS PUBLIC RECORDS REQUESTS INITIAL RESPONSES 20. In separate letters dated January 6, 2015, the Requester submitted substantially similar requests to each of the Defendants (and as well, to the Attorney General?s Of?ce) pursuant to the Public Records Law. Exhibits 1, 2, 3, attached hereto. In each, the Requester sought data contained within the Defendants? computer systems that track criminal cases for purposes of conducting the District Attorneys? core function, the prosecution of cases in court. Speci?cally, the Requester sought certain data sets for each criminal case tracked by the District Attorney, including the case ID number, the offense date, the case ?ling date, the docket number, and the court name where the case was handled. Id. This request superseded previous similar requests submitted to those same of?ces, beginning in July 2014. S_ee, gg, Exhibit 4, attached hereto. To date, the Defendants have not provided any records responsive to the requests, including the most recent request, dated January 6, 2015. 21. The Worcester DA initially responded to the Requester by letter dated February 5, 2015, indicating that all of the information sought is protected by the attomey?client communication privilege. Exhibit 5, attached hereto. 22. The Plymouth DA initially responded to the Requester by letter dated March 17, 2015, stating that the request would require the creation of a record, which is not required by the Public Records Law and that, even if responsive records existed, all of the information contained therein would be exempt from disclosure under G.L. c. 4, citing to the CORI Law, as well as exemptions and Exhibit 6, attached hereto. 23. The Cape Islands DA initially responded to the Requester by letter dated March 25, 2015, stating that the request would require the creation of a record, which is not required by the Public Records Law, and that even if responsive records existed, all of the information contained therein would be exempt from disclosure under G.L. c. 4, citing the CORI Law. Exhibit 7, attached hereto. The Cape Islands DA also stated that ful?lling the request would be burdensome on the Of?ce?s resources and ?nances. APPEALS TO THE SUPERVISOR OF RECORDS 24. The Requester appealed the responses of the Plymouth DA (March 30, 2015 and September 8, 2015); the Cape Islands DA (March 30, 2015 and September 8, 2015); and the Worcester DA (February 16, 2015 and June 24, 2015) to the Supervisor. $2 Exhibits 8, 9, 10, 11, 12 13, attached hereto. ADMINISTRATIVE ORDERS RESPONSES 25. The Supervisor issued an Order to the Worcester DA on May 18, 2015, requiring the Worcester DA to provide the responsive records within ten (10) days. SQ Exhibit 14, attached hereto. The Order further required that, if the Worcester DA decided to withhold any records, he must specify how a particular exemption applies and, if any records were withheld under the attomey-client communication privilege, he must provide a privilege index. Ld. The Worcester DA responded to the Supervisor in a letter, dated June 19, 2015, indicating: (1) that all of the information sought is protected under the attorney-client communication privilege and the work product doctrine; (2) that all of the information is exempt from disclosure under G.L. c. 4, 7(26)(a) citing 6.1.. c. 266, 120F, which prohibits persons from accessing secure databases without authorization; and (3) that the request would require the creation of a record. _S_e_e Exhibit 15, attached hereto. 26. The Supervisor combined the Defendants? respective appeals into one Administrative Order, issued to the Defendants on August 13, 2015. ?g Exhibit 16, attached hereto. Having determined that the Defendants failed to overcome the presumption that the requested records are public, the Supervisor ordered the Defendants to provide the requested records within ten (10) days, subject to any applicable redactions under the Public Records Law. The Defendants separately responded to the Order in letters dated August 24, 2015 (Cape Islands DA), August 26, 2015 (Plymouth DA) and October 2, 2015 (Worcester DA), respectively, in which they reiterated their positions. Exhibits 17, 18 19, attached hereto. 27. On December 31, 2015, the Supervisor issued another Order to the Defendants, which again required the Defendants to provide the responsive records within ten (10) days, subject to any applicable redactions under the Public Records Law. Exhibit 20, attached hereto. The Defendants separately responded to the Order in letters dated January 19, 2016 (Worcester January 22, 2016 (Plymouth and 8 January 26, 2016 (Cape Islands DA), in which they again declined to provide the requested records. Exhibits 21, 22 23, attached hereto. 28. On June 30, 2016, the Supervisor referred the matter to the Attorney General. Exhibit 24, attached hereto. 29. The Attorney General has advised the Defendants of the Supervisor?s referral. To date, the Defendants have not provided the requested records to the Requester. IV. CAUSES OF ACTION Count One: Violation of G.L. c. 66, 10 (Public Records Law exemption CORI Law and statutes) 30. The Commonwealth incorporates by reference the allegations of paragraphs 1 through 29 of the Complaint. 31. Defendants each continue to withhold the entirety of the requested records, asserting, in part, that the records are exempt from disclosure by G.L. c. 4, 7, cl. 26(a), citing to the CORI Law and to G.L. c. 266, 120F. 32. The requested records are public records and are not exempt from disclosure in their entirety under G.L. c. 4, 7, cl. 26(3). 33. The requested data exists in the Defendants? computer tracking system and is retrievable through running a query. 34. The exemption asserted by the Defendants does not apply to the entire universe of records sought by the Requester. Therefore, they may not be withheld in their entirety. 35. To the extent that the Defendants seek to redact portions of the records, the Defendants must specify how the Public Records Law exemption applies to specialized data ?elds or information therein they seek to redact. Count Two: Violation of G.L. c. 66, 10 (Public Records Law exemption 36. The Commonwealth incorporates by reference the allegations of paragraphs 1 through 29 of the Complaint. Defendant Plymouth DA continues to withhold the entirety of the requested records, asserting, in part, that the records are exempt from disclosure by G.L. c. 4, 7, cl. 26(c). 38. The requested records are public records and are not exempt from disclosure in their entirety under G.L. c. 4, 7, cl. 26(0). 39. The requested data exists in the Defendant?s computer tracking system and is retrievable through running a query. 40. The exemption asserted by the Defendant does not apply to the entire universe of records sought by the Requester. Therefore, they may not be withheld in their entirety. 10 41. To the extent that the Defendant seeks to redact portions of the records, the Defendant must specify how the Public Records Law exemption applies to specialized data ?elds or information therein the Defendant seeks to redact. Count Three: Violation of G.L. c. 66, 10 (Public Records Law exemption 42. The Commonwealth incorporates by reference the allegations of paragraphs 1 through 29 of the Complaint. 43. Defendant Plymouth DA continues to withhold the entirety of the requested records, asserting, in part, that the records are exempt from disclosure by G.L. c. 4, 7, cl. 26(f). 44. The requested records are public records and are not exempt from disclosure in their entirety under G.L. c. 4, 7, cl. 26(f). 45. The requested data exists in the Defendant?s computer tracking system and is retrievable through running a query. 46. The exemption asserted by the Defendant does not apply to the entire universe of records sought by the Requester. Therefore, they may not be withheld in their entirety. 47. To the extent that the Defendant seeks to redact portions of the records, the Defendant must specify how the Public Records Law exemption applies to specialized data ?elds or information therein the Defendant seeks to redact. ll Count Four: Violation of G.L. c. 66, 10 (Attorney-client communication privilege) 48. The Commonwealth incorporates by reference the allegations of paragraphs 1 through 29 of the Complaint. 49. The Defendant Worcester DA continues to withhold the entirety of the requested records, asserting, in part, that the records are protected from disclosure by the attorney?client communication privilege. 50. The privilege asserted by the Defendant does not apply to the entire universe of records sought by the Requester. Therefore, they may not be withheld in their entirety. 51. The requested data exists in the Defendant?s computer tracking system and is retrievable through running a query. 52. To the extent that the Defendant seeks to redact portions of the requested records, the Defendant must specify how the privilege applies to specialized data ?elds or information therein the Defendant seeks to redact. Count Five: Violation of G.L. c. 66, 10 (Attorney work product) 53. The Commonwealth incorporates by reference the allegations of paragraphs 1 through 29 of the Complaint. l2 54. Defendant Worcester DA continues to withhold the entirety of the requested records, asserting, in part, that the records are protected from disclosure by the attorney work product doctrine. 55. The requested data exists in the Defendant?s computer tracking system and is retrievable through running a query. 56. The attorney work product doctrine asserted by the Defendant does not apply to the entire universe of records sought by the Requester. Therefore, they may not be withheld in their entirety. 57. To the extent that the Defendant seeks to redact portions of the requested records, the Defendants must specify how the attorney work product doctrine applies to specialized data ?elds or information therein the Defendant seeks to redact. VI. RELIEF REQUESTED WHEREFORE, the Commonwealth respect?rlly asks this Court to enter judgment: a. In favor of the Commonwealth and against the Defendants; b. Declaring that the requested records are public records and are not exempt from disclosure in their entirety under G.L. c. 4, 7, cl. 26(a), because they are not specifically or by necessary implication exempted from disclosure by statute, including the CORI Law, because they contain data that is correlated with information that is also available from court or other public records, but not correlated with defendant-speci?c information; c. Declaring that the requested records are public records and are not exempt from disclosure in their entirety under G.L. c. 4, 7, cl. 26(c); l3 d. Declaring that the requested records are public records and are not exempt from disclosure in their entirety under G.L. c. 4, 7, cl. 26(t); e. Declaring that the requested records are not protected in their entirety from disclosure by the attorney-client communication privilege; f. Declaring that the requested records are not protected in their entirety from disclosure by the attorney work product doctrine; and g. Awarding the Commonwealth such other and further relief as the Court deems just and proper. Respectfully submitted, MAURA HEALEY ATTORNEY GENERAL nathan Sclarsic, 672540 Hanne Rush, 671815 Assistant Attorneys General Government Bureau One Ashburton Place, 20?h Floor Boston, Massachusetts 02108 (617) 963-2045 jonathan.sclarsic@state.ma.us hanne.rush@state.ma.us Date: November 23, 2016 14 DOCKET Trial Court of Massachusetts CIVIL ACTION COVER SHEET (Q The Superior court 7 Massachusetts Attorney General's Office COUNTY Suffolk ADDRESS: One Ashburton Place. 18th Floor Boston. MA 02108 DEFENDANHS): Timothy J. Cruz. Ptymouth County District Attorney: Joseph D. Eariy. Jr.. Worcester County District Attorney; Michael D. O'Keefe. Cape 8- Islands District Attorney ATTORNEY: AAG Jonathan ScIarsic ADDRESS: One Ashburton Place. 18th Floor. Boston. MA 01208 ADDRESS: Plymouth County District Attorney's Of?ce. 32 Belmont Street. Brockton. MA 02301: Worcester County District Attomey?s Of?ce. 225 Main Street. (3301. Worcester. MA 01608: Cape Islands District Attorney?s Of?ce. 3231 Main Street. 580: 672540 Bamstable. MA 02630 TYPE OF ACTION AND TRACK DESIGNATION (see reverse side) CODE NO. TYPE OF ACTION (specify) TRACK HAS A JURY CLAIM BEEN AE1 Administrative Action Involving Commonwealth [1 YES No *If "Other" please describe: STATEMENT OF DAMAGES PURSUANT TO G.L. c. 212, 5 3A The following is a full. itemized and detailed statement of the facts on which the undersi this form. disregard double or treble damage claims; indicate single damages only. a) gned plaintiff or plaintiff counSeI mg to dgrmimney damages. For 52:; a: get IQRI cums mm 2 r'f" - - 75:? c3 c1": (attach additional sheets as necessary) XL .g KO at}: A. Documented medical expenses to date: 3m ?0 1. Total hospital expenses "(13:3 2. Total doctor expenses 3. Total chiropractic expenses 4. Total physicaltherapy expenses 5. Total other expenses (describe below"mu: N) -, ubtggi (A): E. B. Documented lost wages and compensation to date .. C. Documented property damages to dated .. 5 D. Reasonably anticipated future medical and hospital expenses .. 5 E. ReasOnably anticipated lost wages .. F. Other documented items of damages (describe below) .. 3 G. Brie?y describe plaintiff's injury. including the nature and extent of injury: TOTAL (attach additional sheets as necessary) Provide a detailed description of claims(s): TOTAL: 5 NIA Signature of Attorneyi'Pro Se Plaintiff: RELATED ACTIONS: Please provide the case mber. case' name. and county of any related actions pending in the Superior Court. CERTIFICATION PURSUANT TO SJC RULE 1:18 I hereby certify that have complied with requirements of Rule 5 of the Supreme Judicial Court Uniform Rules on Dispute Resolution (SJC Rule 1:18) requiring that I provide my clients with information about court-connected dispute resolution services and discuss with them the advantages and disadvantages of the various methods of dispute res ution. Si nature of Attorne of Record: I . Nov 23. 2016 9 If (W Date.