Globe Newspaper Co. v. Conte

13 Mass. L. Rptr. 355
CourtMassachusetts Superior Court
DecidedJuly 19, 2001
DocketNo. CA19985626B
StatusPublished

This text of 13 Mass. L. Rptr. 355 (Globe Newspaper Co. v. Conte) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Globe Newspaper Co. v. Conte, 13 Mass. L. Rptr. 355 (Mass. Ct. App. 2001).

Opinion

Hinkle, J.

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 plaintiffs motion is ALLOWED, and the defendants’ motions are DENIED.

BACKGROUND

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 [356]*356could 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.

The Globe's Request

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 [G.L.c. 4, §7, cl. 26 and c. 66, §10], 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.Sup. 89 (D.Mass. 1993), and Globe Newspaper Co. v. Conte, 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 $75,1 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.

The Replies

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

District Attorney Conte’s Reply6

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: “I think it is reasonable to expect that, wholly apart from the actual search of records in your office, you and members of your staff would recall some number of prosecutions of municipal corruption by your office during the past 5 years (assuming that any in fact occurred). I would request that such information be included in the response to my request.” After disagreeing that the CORI statute prohibited release of docket numbers and discussing other legal arguments, the letter requested compliance within ten [357]*357days, 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

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Cite This Page — Counsel Stack

Bluebook (online)
13 Mass. L. Rptr. 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/globe-newspaper-co-v-conte-masssuperct-2001.