439 Mass. 374 | Mass. | 2003
The defendants, six district attorneys, appeal from a declaratory judgment entered in favor of the plaintiff, Globe Newspaper Company (Globe), that “docket numbers of criminal cases prosecuted in public judicial proceedings, not correlated with defendant-specific information,” are public records within the meaning of G. L. c. 4, § 7, Twenty-sixth, that they are subject to mandatory disclosure pursuant to G. L. c. 66, § 10 (public records statute), and that such disclosure is not prohibited by the Criminal Offender Record Information statute, G. L. c. 6, §§ 167 et seq. (CORI statute). We transferred the case to this court on our own motion. On grounds other than those utilized by the judge below, we conclude that the declaratory judgment was correctly entered with respect to the type of record request at issue in this case. However, the wording of that declaration must be modified slightly to avoid erroneous application to other types of record requests.
1. Facts and procedural background. The undisputed facts are taken from the parties’ cross motions for summary judgment. On July 31, 1998, a reporter for the Globe sent a letter to the Attorney General and to each district attorney in the Commonwealth requesting information pertaining to “cases of municipal corruption” involving “elected or appointed officials or employees of cities and towns” prosecuted between 1993 and June, 1998. Specifically, the reporter sought the docket number, defendant name, municipality, and charge for each such case. In her letter, the reporter agreed to pay search and copying charges up to $75, and, if such charges would exceed that sum, to be notified of the total charges in advance of fulfilling her request.
The Attorney General and the district attorneys for two districts provided the information as requested. Two other district attorneys did not respond to the request at all. The
In its complaint, the Globe sought an injunction requiring the defendant district attorneys to provide it with the requested information, and a declaration that the documents were public records subject to mandatory disclosure under the public records statute, that the CORI statute did not prohibit defendants from disclosing the requested information, and that the Globe
The judge allowed the Globe’s motion in part. Although she did not accept the Globe’s argument that the requested docket numbers came within the literal terms of the exceptions to the CORI statute, G. L. c. 6, § 172, eighth par., she concluded that the requested docket number information was closely analogous to each of the categories of information described in those exceptions. For these purposes, the CORI statute operated as an exception to the public records statute, and relying on the principle that exceptions to the public records statute were to be interpreted narrowly, she determined that the defendants had not overcome the presumption that the records were public. She also reasoned that treating the docket number information as a public record in the manner requested by the Globe would not frustrate or be contrary to the purposes of the CORI statute. She declined the Globe’s request for a declaration concerning any duty on the part of the district attorneys to make inquiry of staff personnel concerning the existence of records, noting that such
2. Presence of an actual controversy. The defendant district attorneys first argue that no declaratory relief should have been granted because the Globe “was unwilling” to pay the costs of search necessary to respond to its record requests
To the extent that the defendants suggest that the present appeal is moot because of the Globe’s alleged unwillingness to pay the costs of the requested record searches, we are unpersuaded. At no time has the Globe indicated any final refusal to pay the fees imposed by the statute. The Globe was confronted with responses from the district attorneys indicating that, even if search costs were paid, they would not produce the records based on their interpretation of the CORI statute. There was thus no reason for the Globe to have agreed to any of the proposed search expenses, or to have made a counterproposal (as to either the fees themselves or to a narrowing of the search parameters) unless and until the CORI statute issue was resolved. While it may be unlikely that the Globe would agree to pay the estimated fees previously announced by certain defendants (see note 4, supra), there is no conclusive impasse between the Globe and the defendants on that issue that would automatically moot the Globe’s request for public records.
Moreover, the Globe correctly maintains that the present case falls into the category of cases that are capable of repetition yet evading review. The present case is at least the third time that
3. Status of docket numbers under the CORI statute. “Every
Here, the defendants rely on the exemption for records “specifically or by necessary implication exempted from disclosure by statute,” G. L. c. 4, § 7, Twenty-sixth (a), on the theory that the CORI statute specifically prohibits disclosure of such records. The CORI statute governs dissemination of “criminal offender record information,” defined as “records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pretrial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release.” G. L. c. 6, § 167.
However, the CORI statute identifies certain records which, notwithstanding that they would come within the definition of criminal offender record information, “shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically, provided that no alphabetical arrestee, suspect, or similar index is available to the public, directly or indirectly; (2) chronologically maintained court rec
The Globe contends that the docket number information it seeks comes within the first three exceptions to the CORI statute and is therefore a “pubhc record” subject to disclosure under the pubhc record statute. We agree that the docket numbers at issue qualify as “chronologically maintained court records of pubhc judicial . . . proceedings,” id., and therefore need not consider whether any of the other exceptions would be applicable.
The defendants maintain, however, that such information in their hands is no longer a “court” record, as they are district attorneys, not courts. In essence, they contend that the term “court records” as used in this exception includes a requirement that the record be physically located at a “court” and thus apphes only to the precise copy of the record that is at the court house. We disagree. 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
To the extent that there is any ambiguity whether the term “court records” refers only to those record copies that are physically located within a court house, that ambiguity must be resolved in favor of disclosure. The judge correctly perceived the hierarchy of the public records statute and the CORI statute. The CORI statute operates as an exception to the definition of “[pjublic records,” G. L. c. 4, § 7, Twenty-sixth (a), and, as an exception, it must be construed narrowly. See General Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798, 801-802 (1999); Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 414 Mass. 609, 614 (1993), and cases cited. Consistent with that principle, the term “court records,” which operates as an exception to the exception, must be construed broadly in favor of disclosure. Absent clear indication from the Legislature that the exception for “court records” was intended to require persons seeking such records to obtain them solely from court clerks’ offices, we should not engraft such a requirement onto that exception. Rather, we treat the exception
We also agree with the judge below that allowing 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.
4. Wording of the declaration. The judge entered a declaration that “docket numbers of criminal cases prosecuted in public judicial proceedings, not correlated with defendant-specific information, are public records under G. L. c. 4, § 7, Twenty-sixth, that they are subject to mandatory disclosure under G. L. c. 66, § 10, and that their disclosure is not prohibited by the CORI statute.” For purposes of the type of record request before her, that declaration was accurate.
While docket numbers are court records, responses to requests for docket number information about particular types of cases inherently reveal information beyond the docket numbers
We therefore conclude that the wording of the declaratory judgment must be modified to limit it to those record requests that are framed entirely in terms of information that would be available from court or other public records, as only those requests call for disclosures that are entirely exempt from the CORI statute. The case is remanded to the Superior Court for modification. The declaration should be amended to read as follows: “Docket numbers of criminal cases prosecuted in public judicial proceedings, correlated with information that is also available from court or other public records, but not correlated with defendant-specific information, are public records under G. L. c. 4, § 7, Twenty-sixth, subject to mandatory disclosure
So ordered.
The computerized record keeping system in the district attorneys’ offices allowed for retrieval of cases involving particular charges but did not identify “municipal corruption” cases. Nor did the system record a defendant’s employment or the identity of a defendant’s victim, thus preventing the district attorneys from using their computers to locate cases where the defendant had victimized or been employed by a municipality.
Globe Newspaper Co. vs. Conte, Suffolk Superior Court No. 95-2743-A (July 28, 1995) (memorandum of decision and order on plaintiff’s motion for preliminary injunction).
Three of the district attorneys provided cost estimates for the search and copying of records, ranging from $80,000 to $200,000.
The Globe Newspaper Company (Globe) waived its request for any declaration with respect to the reasonableness of the fees that certain of the district attorneys had sought to impose. See note 4, supra. It also did not press its claim for injunctive relief.
The Globe has not appealed from the judge’s denial of that request for declaratory relief, and we therefore do not address it.
See G. L. c. 66, § 10 (a) (person requesting public records must pay “actual expense” of search and “reasonable fee” for copying).
In Globe Newspaper Co. v. Fenton, 819 F. Supp. 89 (D. Mass. 1993), the Globe complained that three district attorneys had refused to provide docket numbers for public corruption cases, and sought a declaration that G. L. c. 6, § 172, was an unconstitutional prior restraint on speech. The Globe obtained a declaration that the statute violated the First Amendment “to the extent that it imposes a sanction for the communication of criminal offender record information contained in a judicial record open to the public at the time of the communication of such information.” Id. at 101. Two years later, when two district attorneys still refused to provide the Globe with docket numbers for drug forfeiture cases, the Globe obtained a preliminary injunction requiring them to comply with the Globe’s public records request for those docket numbers. Globe Newspaper Co. vs. Conte, Suffolk Superior Court No. 95-2743-A (July 28, 1995) (memorandum of decision and order on plaintiff’s motion for preliminary injunction). There, the Superior Court judge found that the Globe would likely prevail on its claim that release of docket number information was not prohibited by the Criminal Offender Record Information statute, G. L. c. 6, §§ 167 et seq. (CORI statute).
We further note that the various district attorneys and the Attorney General have interpreted their obligations to produce docket number information differently, with some of them turning over the requested docket number information and some of them declining to do so based on the CORI statute. Both of those interpretations cannot be right: there is either a violation of the CORI statute being perpetrated by the Attorney General and those district attorneys who produce docket numbers in response to requests of this nature, or a violation of the public records statute by those district attorneys who decline to produce the docket numbers. The issue needs to be resolved to prevent this recurring violation of one statute or the other.
“Criminal justice agencies” are defined as “those agencies at all levels of government which perform as their principal function, activities relating to (a) crime prevention, including research or the sponsorship of research; (b) the apprehension, prosecution, adjudication, incarceration, or rehabilitation of criminal offenders; or (c) the collection, storage, dissemination or usage of criminal offender record information.” G. L. c. 6, § 167.
In recent years, the Legislature has identified specific agencies and entities who may also have access to criminal offender record information for particular purposes. See G. L. c. 6, § 172B (Department of Social Services and Department of Youth Services may have access for purposes of evaluating foster and adoptive homes); § 172D (Department of Revenue may have access for purposes of establishing paternity or child support obligations); § 172F (office of child care services may have information for purposes of evaluating licensed facilities and programs). Similarly, for various occupations involving the care of children, the elderly, or the disabled, the Legislature has not only allowed the employing entity to obtain criminal offender record information but has required that such employers obtain the information with respect to all prospective employees and volunteers. See G. L. c. 6, § 172C (home health care or personal care attendants); § 172E (employees of long-term care facilities who provide direct personal care to residents); § 172G (Supp. 2002) (employees and volunteers at children’s camps); § 172H (Supp. 2002) (employees and volunteers at children’s programs); § 1721 (Supp. 2002) (employees involved in transporting school children).
A further proviso in G. L. c. 6, § 172, eighth par., limiting the availability of court records (“provided that no alphabetical or similar index of criminal defendants is available to the public, directly or indirectly”) has been held unconstitutional. See Globe Newspaper Co. v. Fenton, supra at 100-101. As a result of that decision, the public has access to court clerks’ alphabetical indices of defendants’ names and may thereby obtain access to court records concerning an individual defendant.
By way of regulation, the criminal history systems board has created additional specific exceptions allowing release of criminal offender record information. See 803 Code Mass. Regs. §§ 2.04(5), 4.02, 5.03, 6.06 (1993). See also Bellin v. Kelley, 435 Mass. 261, 265-269 (2001) (upholding board’s authority to promulgate such regulatory exceptions). The Globe’s request for docket numbers does not fit within any of these regulatory exceptions.
Because we agree with the Globe on the interpretation of this exception to the CORI statute, we also need not reach the Globe’s alternative argument challenging the CORI statute on constitutional grounds.
On constitutional grounds, the Federal court has held that “nothing in the CORI statute may be held to impose liability for the communication of information otherwise available at the time of the communication in a judicial record to which the public has access” and that it would violate the First Amendment to impose a sanction “for the communication of criminal record information contained in a judicial record open to the public at the time of the communication of such information.” Globe Newspaper Co. v. Fenton, supra at 100, 101. The defendants correctly maintain that nothing in the final decree in that case requires them to disclose information in court records. That case, however, was a constitutional challenge to the CORI statute, not an interpretation of the public records statute. It is the public records statute that requires the defendants to disclose anything that qualifies as a “public record.” G. L. c. 66, § 10 (a).
The Globe has not challenged the limitation the judge added to the requested declaration, namely, that the request for docket numbers “not [be] correlated with defendant-specific information.” We therefore need not address whether that limitation is necessary.