Globe Newspaper Co. v. Conte
| Decision Date | 19 July 2001 |
| Docket Number | CA19985626B |
| Citation | 2001 MBAR 154 |
| Parties | Globe Newspaper Company v. John J. Conte1 et al.2 |
| Court | Massachusetts Superior Court |
Mass L. Rptr. Cite: 13 Mass. L. Rptr. 355
Judge (with first initial, no space for Sullivan, Dorsey, and Walsh): HINKLE
Plaintiff in this action, Globe Newspaper Co., sought from defendant district attorneys docket numbers for "municipal corruption" cases defendants had prosecuted in the preceding five years. Defendants did not comply, citing the Criminal Offender Record Information ("CORI") statute, G.L.c. 6, 167 et seq., and stating that the requested information could not be compiled without significant cost. Plaintiff then filed this action for declaratory and injunctive relief. The matter is now before the court on the parties' cross motions for summary judgment.3 After a hearing, for the reasons discussed below the plaintiff's motion is ALLOWED, and the defendants' motions are DENIED.
The undisputed material facts as established by the summary judgment record are as follows.
Defendants are all district attorneys for their respective districts. Each is the custodian of the records held by his office.
During the relevant time period, defendants all used an electronic information management system called PROMIS4 to track cases. Defendants' staff entered information about cases into PROMIS by typing data into the appropriate "field." For example, a defendant's name would be entered into one field, the statutes and offenses charged into others and so forth. Entering the data into fields allowed for computerized searches of particular fields. For example, a search could list all cases involving a particular defendant or cases assigned to a particular assistant district attorney. While there were fields identifying the statute under which a defendant was prosecuted, there was no field identifying a case as one of "municipal corruption." There was also no field identifying a defendant's occupation or status as a municipal official or a victim's occupation or status as a municipality or public body.
Plaintiff publishes the Boston Globe (the "Globe"), a daily newspaper. On or about July 31, 1998, Alice Dembner, a reporter for the Globe, sent letters to the Attorney General, to each defendant and to all other district attorneys in the Commonwealth. The text of the letters is identical. In relevant part, the letters state:
Pursuant to the Freedom of Information Act [], I hereby request information on cases of municipal corruption prosecuted by your office from 1993 through June 30, 1998. I am interested in cases involving elected or appointed officials or employees of cities and towns. I am NOT interested in cases involving state or county officials or employees.
For each case, I request the docket number, defendant name(s), municipality and charge. This information is public under both [c. 66, 10], and the decisions of Globe Newspaper Co. v. Fenton, 819 F.Supp. 89 (D.Mass. 1993), and, Suffolk Superior Court No. 95-2743-A (July 28, 1995).
In the event that the search and reproduction fees involved in complying with my request do not exceed the sum of $75, I would be grateful if you would send me copies of the documents along with your statement of search and copying charges. If the fees exceed $75, please inform me of the total charges in advance of fulfilling my request...
Thank you for your cooperation in this matter. I look forward to receiving your response within 10 days.
In response to this letter, the Attorney General and the district attorneys for the Northern District and the Cape and the Islands District provided docket numbers and other information. The Attorney General and the district attorney for the Cape and Islands District did so at no cost to the Globe. The district attorney for the Northern District asked his staff what municipal corruption cases they recalled prosecuting during the relevant time, and he provided information from their responses.5
By letter to Dembner dated August 7, 1998, district attorney Conte stated in relevant part:
For the reasons set forth below, we are unable to comply with this request.
This office maintains its files alphabetically; none of our files are grouped or filed by offender occupation. Therefore, even assuming arguendo that our case files for the years you have specified might contain some document or documents which contain reference to an offender's occupational status, we would have no way to access this information short of a page-by-page search of each case file which falls within the time frame of your request... [W]e estimate your request would require a file-by-file search of at least 200,000 case files. The request is further complicated by the vagueness of your reference to "municipal corruption," not itself a recognized criminal offense in the Commonwealth and a phrase which likely encompasses many different offenses. In addition to these practical obstacles, your request also appears to call for information which may be protected or exempted from disclosure by G.L.c. 6, secs. 167-78B, G.L.c. 4, Sec. 7(26)(f) and work-product and other common law privileges.
If you wish to provide us with the names of the defendants in specific cases and identify which offenses you construe as involving "municipal corruption," if there are no legal prohibitions, we would be happy to provide you with the information.
By letter dated August 24, 1998, counsel for the Globe, Jonathan Albano, wrote to district attorney Conte on behalf of plaintiff and Dembner. This letter7 states that the Globe was amending its request "to reference the statutory violations that likely would be involved in prosecutions concerning municipal corruption."
As amended, the Globe's request is as follows: documents sufficient to identify docket number, defendant name(s), municipality, charge(s) and outcome(s) in prosecutions of municipal, city or town employees or officials brought by your office from January 1993 to June 30, 1998 and involving alleged violations of the following statutes: (a) ch. 268A (including without limitations 2 and 3); (b) ch. 55; (c) ch. 266, 51, 67A, 67B and 67C; (d) ch. 266, 30; (e) ch. 268, 9A[;] (f) c. 149, 44A-44J; (g) ch. 267, 1 and 8; and (h) ch. 62C, 73.8
The letter references 950 Code Mass. Regs. 32.05(4) and states: After disagreeing that the CORI statute prohibited release of docket numbers and discussing other legal arguments, the letter requested compliance within ten days, requested waiver of any fees or presentation of a "written, good faith estimate" of any fees.
By letter dated September 1, 1998, district attorney Conte stated that, despite the Globe's narrowing of its request by providing specific statute citations, which would reduce the work required for compliance, that compliance would still require review of each file. "Recollections" of staff members "would plainly be beyond the scope of information contemplated by G.L.c. 4, Sec. 7(26) and G.L.c. 66, Sec. 10." In the opinion of the district attorney, the estimated cost of compliance would likely be substantial: perhaps 5,000 hours billed at $40 per hour. District attorney Conte's policy "is to require a substantial advance payment prior to commencing such vast undertakings." The letter concluded by suggesting that a search of District Court card catalogs would be simpler for the Globe.
By letter dated August 18, 1998, district attorney Martin stated that Dembner's request "would require a hand search of every case for the last five years" at a substantial cost. The letter states that the CORI statute prohibits disclosure. A letter from Attorney Albano, similar in substance to the one sent to district attorney Conte, followed on August 24, 1998. By letter dated September 8, 1998, district attorney Martin provided an estimate of the cost required to comply with plaintiff's request. The estimate included a cost of about $1,125 to write a computer program to conduct a search and about $80,000 (exclusive of copying and redacting costs and fees) to conduct a manual review of files.
By letter dated August 4, 1998, district attorney Walsh stated:
Unfortunately we are unable to help you with your request. Our records... list cases by defendant, docket numbers, etc. and by charges... There is no category for "municipal corruption" nor is there a computer entry which would indicate the occupation of a criminal defendant (i.e. municipal employee).
If there are any particular cases, docket numbers, etc. that we could help you with, we'd be more than happy to try.
(Emphasis in original.) Dembner responded in a letter dated August 14, 1998 which in substance is the same as the Albano letter to district attorney Conte. By letter dated August 17, 1998, district attorney Walsh stated:
Unfortunately again we are unable to help you with your request.
Our office prosecutes a [sic] estimated forty thousand cases per year. To conduct a search from 1993 through June 30, 1998 of more than a [sic] estimated two hundred thousand cases without a docket number, name, etc. would not be accurate.
Again if there are any particular case or cases, docket numbers, names in Bristol County that we could...
To continue reading
Request your trial