Globe Newspaper Co. v. District Attorney

• Decision Date: 15 May 2003
• Citation: 439 Mass. 374,788 N.E.2d 513
• Parties: GLOBE NEWSPAPER COMPANY v. DISTRICT ATTORNEY FOR the MIDDLE DISTRICT & others.<SMALL><SUP>1</SUP></SMALL>
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 513

788 N.E.2d 513

439 Mass. 374

GLOBE NEWSPAPER COMPANY v. DISTRICT ATTORNEY FOR the MIDDLE DISTRICT & others.¹

Supreme Judicial Court of Massachusetts, Suffolk.

Argued January 6, 2003.

Decided May 15, 2003.

Deidre Roney, Assistant Attorney General, (Brian J. Dobie, Assistant District Attorney, with her) for the defendant.

Jonathan M. Albano, Boston, for the plaintiff.

Present: MARSHALL, C.J., GREANEY, IRELAND, SPINA, COWIN, SOSMAN, & CORDY, JJ.

SOSMAN, J.

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 remaining seven district attorneys responded, but refused to produce the requested information, citing the burden of identifying "public corruption" cases.² Six of the district attorneys who refused to produce the requested information also claimed that the CORI statute prohibited them from releasing such information. Counsel for the Globe followed up with an amended request, identifying the charges (by statutory citation) that the Globe viewed as most likely to be at issue in public corruption cases, and suggesting that members of each district attorney's staff "would recall some number of prosecutions of municipal corruption" if any had been brought during the preceding five years. See 950 Code Mass. Regs. § 32.05(4) (1993) ("custodian's superior knowledge of the contents of a governmental entity's files shall be used to assist" in complying with request for public records). As to the prohibitions imposed by the CORI statute, counsel for the Globe pointed to Globe Newspaper Co. v. Fenton, 819 F.Supp. 89 (D.Mass.1993), and to a decision of the Superior Court,³ in support of the Globe's position that the CORI statute did not prohibit release of the requested information. When the district attorneys still refused to comply with the Globe's amended request for records, again citing the CORI statute and the allegedly burdensome nature of the requested record search,⁴ the Globe filed the present action for declaratory and injunctive relief.

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 was entitled to receive the information at "actual expense" with copies of documents at "reasonable cost." After stipulating to the dismissal of all claims against three of the defendants (with whom the Globe had apparently resolved the dispute over access to the requested information), the Globe and the remaining six defendants filed cross motions for summary judgment. As framed in its summary judgment motion, the Globe sought declarations that (1) docket numbers of criminal cases are public records under G.L. c. 66, § 10, and G.L. c. 4, § 7, Twenty-sixth; (2) docket numbers were exempt from the restrictions of the CORI statute pursuant to G.L. c. 6, § 172, eighth par.; (3) if the CORI statute prohibited the disclosure of criminal docket numbers it was violative of the First Amendment to the United States Constitution and art. 16 of the Declaration of Rights of the Massachusetts Constitution, and (4) the public records statute and regulations thereunder required custodians of records to make inquiry of their staff to determine the existence of documents responsive to a request for public records.⁵

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 an inquiry might be reasonable in some circumstances but not in others.⁶ Accordingly, she entered declaratory judgment in favor of the Globe on statutory grounds, without reaching the Globe's alternative constitutional claims.

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 requests⁷ means that there is no actual controversy remaining. See G.L. c. 231A, § 1 (granting jurisdiction to make binding declarations "in any case in which an actual controversy has arisen"); Boston Herald, Inc. v. Superior Court Dep't of the Trial Court, 421 Mass. 502, 504, 658 N.E.2d 152 (1995), and cases cited. None of the defendants raised this argument below, and the judge therefore committed no error in reaching the merits of the cross motions pending before her.

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 the Globe has commenced litigation concerning district attorneys' refusal to produce docket number information, and the third time that certain district attorneys have contended that the CORI statute precludes them from releasing such information.⁸ While the defendants argue that any future denial of records on account of the CORI statute may again be litigated and will not escape review, that argument ignores the fact that compliance with a request for public records should ordinarily occur within ten days of that request. See G.L. c. 66, § 10 (b). See also Globe Newspaper Co. v. Commissioner of Educ., 439 Mass. 124, 125, 127, 786 N.E.2d 328 (2003), and cases cited. Litigation to vindicate rights of access to public records cannot realistically be completed in that time frame. Even if financial considerations may ultimately moot the Globe's present request for records, it is appropriate that we resolve the CORI statute issue underlying an apparently ongoing dispute between some district attorneys and the Globe.⁹

3. Status of docket numbers under the CORI statute. "Every person having custody of any public record, as defined in [G.L. c. 4, § 7, Twenty-sixth], shall, at reasonable times and without unreasonable delay, permit it ... to be inspected and examined by any person ... and shall furnish one copy thereof upon payment of a reasonable fee." G.L. c. 66, § 10 (a). The definition of "public records" is...