AG backs Times records request

The Office of Attorney General Maura Healy has found in favor of The Times regarding a records request the Barnstable County Sheriff’s Office (BCSO) refused to fulfill. The records pertain to Danielle Clermont, a former Tisbury Police Department candidate who years before her candidacy was found in contempt of court and ordered held in jail by Edgartown District Court Judge Lance Garth. The Times specifically sought Clermont’s transfer and incarceration records, made its initial request in July 2020, and appealed denials from BCSO to the state’s supervisor of records. 

Following an in camera review, the supervisor of records issued a final order to BCSO in March 2021. BCSO was ordered to redact where it deemed necessary, and then hand over the records to The Times. BCSO didn’t comply. In April 2021, the supervisor of records referred the matter to the attorney general’s office (AGO). 

The supervisor of records referred only two records cases to the AGO in 2021, according to Debra O’Malley, spokesperson for the secretary of state’s office. The other request involved Boston Police Department records, O’Malley said. When compared with over 3,300 records appeals handled by the supervisor of records in 2021, according to the agency’s appeals tracker, the referral to the AGO comes across as uncommon. 

About a year later, on March 16, 2022, which happened to be during Sunshine Week, and on Freedom of Information Day specifically, the AGO’s Division of Open Government issued a letter which upheld the supervisor of records’ analysis and order. 

“We appreciate the time you have taken to review the responsive records and explain your legal position in your exchanges with the Supervisor on this matter,” the letter states. “However, after reviewing the Supervisor’s referral, as is our responsibility under G.L. c. 66, § 10A, and after considering your position, we agree with the Supervisor that the Office has not met its burden to show that the records constitute ‘information recorded in criminal proceedings that are not dismissed before arraignment’ such that they fall within the definition of CORI, and may be withheld pursuant to exemption (a) of the Public Records Law. Therefore, we direct the Office to either disclose the records to the requestor, or provide a further response that satisfactorily demonstrates the applicability of a Public Records Law exemption.”

The BCSO’s continued argument against releasing the records has been that they are exempt by statute, specifically under CORI (Criminal Offender Record Information).

“CORI is defined broadly as ‘records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable 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,’” the letter states. “However, such information is ‘restricted to information recorded in criminal proceedings that are not dismissed before arraignment.”

The letter further states, “Here, the requested records pertain to an individual who was never arraigned in a criminal proceeding. Rather, a judge detained the individual for contempt of court as a result of an outburst in a courtroom where the individual had been a spectator. The individual was held in the custody of the Barnstable County Sheriff until she was released without any criminal charges. Therefore, because the responsive records were not recorded ‘in a criminal proceeding where the defendant was arraigned,’ the responsive records cannot meet the definition of CORI.”

The letter states the AGO reserves the right to “compel” the BCSO in superior court to comply with the “action requested” in the letter if BCSO doesn’t do so on its own accord.