Attorney General v. District Attorney for the Plymouth District

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SJC-12722

ATTORNEY GENERAL vs. DISTRICT ATTORNEY FOR THE PLYMOUTH
DISTRICT & others.1

Suffolk. November 5, 2019. - March 12, 2020.

Present: Gants, C.J., Lenk, Gaziano, Lowy, & Budd, JJ.

Public Records. Criminal Offender Record Information. District
Attorney.

Civil action commenced in the Superior Court Department on
November 23, 2016.

The case was heard by Rosemary Connolly, J., on a motion
for summary judgment.

The Supreme Judicial Court granted an application for
direct appellate review.

Thomas R. Kiley, Special Assistant Attorney General
(Meredith G. Fierro also present) for the defendants.
Carrie Benedon, Assistant Attorney General, for the
plaintiff.
Rebecca Jacobstein, Committee for Public Counsel Services,
& Lindsay M.K. Custer, for Committee for Public Counsel
Services, amicus curiae, submitted a brief.

1 District Attorney for the Middle District and District
Attorney for the Cape and Islands District.
 2

GANTS, C.J. A reporter for Boston Globe Media Partners,

LLC (Globe), made a public records request pursuant to G. L.

c. 66, § 10 (public records law) to each of the offices of the

Commonwealth's eleven district attorneys and to the office of

the Attorney General for information stored in an internal

electronic case database maintained by each of these offices

(database). Specifically, the Globe sought data tables

containing the following twenty-three categories of information

for each criminal case tracked by the district attorneys and the

Attorney General in their databases:

"[1] Case ID Number . . . ; [2] Offense Date; [3] Case
filing Date; [4] Docket number; [5] Court name where the
case was handled; [6] Criminal count number; [7]
Charge/crime Code . . . ; [8] Charge/crime Description
. . . ; [9] Charge/crime Type . . . ; [10] Department that
filed the charge; [11] Way charge was initiated (Ex: grand
jury indictment, filed by police . . . etc.); [12]
Defendant ID Num (Internal tracking number used by DA's
office to identify defendant); [13] Defendant
Race/Ethnicity; [14] Defendant Gender; [15] Judge's Name
who handled disposition; [16] Disposition Date; [17]
Disposition Code; [18] Disposition Description; [19]
Disposition Type; [20] Disposition/sentence[] recommended
by prosecutor for each charge; [21] Sentence Type; [22]
Sentence Description; [23] Case status."

All of the offices complied with the request except for

those of the district attorneys for the Plymouth District, the

Middle District, and the Cape and Islands District (the district

attorneys). The Globe appealed to the supervisor of records

(supervisor) to determine whether the requested information

sought from the databases are public records that must be
 3

disclosed under the public records law. The supervisor

determined that the information constitutes public records and

ordered the district attorneys to produce the requested data.

The district attorneys declined to do so, and the supervisor

referred the matter to the Attorney General, who commenced an

action seeking a declaration that the requested data are public

records. A Superior Court judge allowed the Attorney General's

motion for summary judgment and entered a judgment declaring

that the Globe's request seeks public records that must be

disclosed. We granted the district attorneys' motion for direct

appellate review.

On appeal, the district attorneys argue that we should

reverse the declaratory judgment for two reasons: first, that

under G. L. c. 4, § 7, Twenty-sixth (a), these records are

"specifically or by necessary implication exempted from

disclosure" under the Criminal Offender Record Information Act,

G. L. c. 6, §§ 167-178B (the CORI act); and second, that the

Globe's request requires them not merely to disclose existing

records but to create a computer program to extract the data and

create a new report, which exceeds what is required under the

public records law.

We conclude that the data sought by the Globe from the

district attorneys would be "specifically or by necessary

implication exempted from disclosure" under the CORI act if the
 4

individuals whose cases were tracked by this data could be

directly or indirectly identified, because a criminal history of

these individuals could then be compiled from this data that may

be more extensive than what members of the public are permitted

to obtain under the CORI act. We also conclude that if the

court case docket number (docket number) for each case were

segregated and redacted from the remaining categories of

information, these individuals could not be directly or

indirectly identified from this data. We also conclude that a

request such as this, which requires the extraction of

categories of information from an existing database, does not

impose burdens on public record holders that exceed what is

required under the public records law. We therefore affirm the

judgment only in part and declare that the district attorneys

must disclose to the Globe twenty-two of the twenty-three

categories of information requested, excising from the

disclosure the docket number for each case requested.2

Statutory background. This case requires us to attempt to

harmonize the language and legislative purpose of two statutes:

the public records law, G. L. c. 66, § 10, and the CORI act,

G. L. c. 6, §§ 167-178B.

2 We acknowledge the amicus brief submitted by the Committee
for Public Counsel Services.
 5

1. The public records law. The public records law, G. L.

c. 66, § 10, governs the public's right to access records and

information held by State governmental entities. Under the

public records law, anyone has the right to access or inspect

"public records" upon request. G. L. c. 66, § 10 (a). "The

primary purpose of the [public records law] is to give the

public broad access to governmental records." Worcester Tel. &

Gazette Corp. v. Chief of Police of Worcester, 436 Mass. 378,

382-383 (2002). In enacting the public records law, the

Legislature recognized that "[t]he public has an interest in

knowing whether public servants are carrying out their duties in

an efficient and law-abiding manner," Attorney Gen. v. Collector

of Lynn, 377 Mass. 151, 158 (1979), and that "greater access to

information about the actions of public officers and

institutions is increasingly . . . an essential ingredient of

public confidence in government," New Bedford Standard-Times

Publ. Co. v. Clerk of the Third Dist. Ct. of Bristol, 377 Mass.

404, 417 (1979) (Abrams, J., concurring).

"Public records" are broadly defined as "all books, papers,

maps, photographs, recorded tapes, financial statements,

statistical tabulations, or other documentary materials or data,

regardless of physical form or characteristics, made or received

by any officer or employee" of any Massachusetts governmental

entity. G. L. c. 4, § 7, Twenty-sixth. But "[n]ot every record
 6

or document kept or made by [a] governmental agency is a 'public

record.'" Suffolk Constr. Co. v. Division of Capital Asset

Mgt., 449 Mass. 444, 454 (2007). The Legislature has identified

twenty categories of records that fall outside the definition of

"public records" and are consequently exempt from disclosure

under the public records law. G. L. c. 4, § 7, Twenty-sixth

(a)-(u). Here, only one exemption has been claimed by the

district attorneys: G. L. c. 4, § 7, Twenty-sixth (a)

(exemption [a]) excludes records from disclosure where they are

"specifically or by necessary implication exempted from

disclosure by statute."

A public record holder may invoke exemption (a) as the

basis for withholding requested records where another statute --

the "exempting statute" -- expressly prohibits disclosure. See,

e.g., Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,

544 n.5 (1977), citing G. L. c. 167, § 2 (copies of bank

examination reports "shall be furnished to such bank for its use

only and shall not be exhibited to any other person . . .

without the prior written approval of the commissioner"); G. L.

c. 111B, § 11 (alcohol treatment records "shall be

confidential"); G. L. c. 41, § 97D (all reports of rape or

sexual assault "shall not be public reports"). Alternatively, a

record may be withheld where the exempting statute protects the

record from disclosure by "necessary implication," such as where
 7

the exempting statute prohibits disclosure as a practical

matter. See, e.g., Champa v. Weston Pub. Schs., 473 Mass. 86,

91 n.8 (2015) (Federal statute "does not expressly prohibit

disclosure of 'education records,' but it does condition receipt

of Federal funds on the nondisclosure of education records").

Under the public records act, "a presumption shall exist

that each record sought is public and the burden shall be on the

defendant agency or municipality to prove, by a preponderance of

the evidence, that such record or portion of the record may be

withheld in accordance with state or federal law." G. L. c. 66,

§ 10A (d) (1) (iv). Therefore, the burden rests with the

district attorneys to prove that the CORI act specifically or by

necessary implication exempts the requested records from

disclosure.

2. The CORI act. First enacted in 1972, the CORI act

centralized the collection and dissemination of criminal record

information in the Commonwealth. St. 1972, c. 805. See New

Bedford Standard-Times Publ. Co., 377 Mass. at 413. It created

a unified management system for all criminal record information,

allowing, for the first time, the compilation of a comprehensive

State criminal history for each offender (CORI report). St.

1972, c. 805, § 1. It also strictly limited dissemination of

those State-compiled criminal histories to criminal justice

agencies and other entities specifically granted access by
 8

statute. Id. By imposing these restrictions, the Legislature

intended to address the need of criminal justice agencies to

access criminal offender information while "embedded[ing] in the

statutory public policy of Massachusetts" its "interest in

promoting the rehabilitation and reintegration into society of

former criminal defendants." Globe Newspaper Co. v. Fenton, 819

F. Supp. 89, 97 (D. Mass. 1993) (Fenton).

In the following years, groups such as employers, victim

advocates, and the press began to voice dissatisfaction with the

inaccessibility of criminal record information and challenged

the constitutionality of the CORI act and related provisions.

See, e.g., New Bedford Standard-Times Publ. Co., 377 Mass. at

405; Fenton, 819 F. Supp. at 90; Globe Newspaper Co. v. Pokaski,

684 F. Supp. 1132, 1132 (D. Mass. 1988), aff'd in part and

reversed in part, 868 F.2d 497 (1st Cir. 1989) (challenging

constitutionality of criminal record sealing under G. L. c. 276,

§ 100C). After years of debate and gradual modification, see,

e.g., St. 1990, c. 319; St. 1977, c. 691, the CORI act was

substantially revised in 2010 by the enactment of CORI reform.

St. 2010, c. 256. See Massing, CORI Reform --Providing Ex-

Offenders with Increased Opportunities without Compromising

Employer Needs, 55 Boston Bar J. 21, 21 (2011) (discussing

statutory history).
 9

CORI reform created a new agency, the Department of

Criminal Justice Information Services (DCJIS), to manage "data

processing and data communication systems . . . designed to

ensure the prompt collection, exchange, dissemination and

distribution of such public safety information as may be

necessary for the efficient administration and operation of

criminal justice agencies and to connect such systems directly

or indirectly with similar systems in this or other [S]tates."

G. L. c. 6, § 167A (c). See St. 2010, c. 256, § 8 (c). In

turn, DCJIS developed iCORI, defined as "[t]he [I]nternet-based

system used in the Commonwealth to access CORI and to obtain

self-audits." 803 Code Mass. Regs. § 2.02 (2017).

CORI reform also significantly expanded the availability of

CORI reports. See St. 2010, c. 256, § 21. Where before only

criminal justice agencies and a narrow group of statutorily

authorized employers and government agencies could access CORI

reports, CORI reform created a tiered system of access to CORI

based on the identity of the requestor. See id. See also 803

Code Mass. Regs. § 2.05(2) (2017). For example, under the

tiered system, "[c]riminal justice agencies may obtain all

criminal offender record information, including sealed records,

for the actual performance of their criminal justice duties."

G. L. c. 6, § 172 (a) (1). Members of the general public have

much more limited access. In the tier of "open access," any
 10

member of the general public, upon written request, may obtain a

limited amount of CORI about a person: felony convictions from

the last ten years that were punishable by imprisonment of five

years of more, all felony convictions from the past two years,

misdemeanor convictions from the past year, and information

regarding custody status and placement if the person is

incarcerated or on probation or parole. G. L. c. 6,

§ 172 (a) (4).3 The commissioner of DCJIS also may provide

access to CORI to persons other than those entitled to obtain

access where he or she finds that such dissemination "serves the

public interest." G. L. c. 6, § 172 (a) (6).

CORI reform also substantially decreased the waiting period

for automatic sealing of criminal records under G. L. c. 276,

§ 100A, and expanded the availability of discretionary sealing

to continuances without a finding.4 See St. 2010, c. 256, § 128;

3 In the tier of "standard access," prospective employers
and landlords who make a request for a CORI report from the
Department of Criminal Justice Information Services (DCJIS)
regarding prospective employees or tenants receive more
information than the general public but less than criminal
justice agencies: pending criminal charges, including cases
continued without a finding that have yet to be dismissed, and,
unless sealed, misdemeanor convictions from the last five years
and felony convictions from the last ten years. G. L. c. 6,
§ 172 (a) (3).

4 The waiting period to seal misdemeanor convictions was
reduced from ten years to five years, and for felony
convictions, from fifteen years to ten years. See St. 2010,
c. 256, § 128; Commonwealth v. Pon, 469 Mass. 296, 306 n.17
(2014). In 2018, as part of the criminal justice reform bill,
 11

Commonwealth v. Pon, 469 Mass. 296, 305-306 (2014). "These

reforms, coupled with the procedural protections aimed at

minimizing discrimination in the hiring process, strongly

indicate that the Legislature was concerned with the collateral

consequences of criminal records and sought to make sealing

broadly available to individuals whose criminal histories or

records no longer presented concerns of recidivism." Pon, supra

at 306.

Despite the limitations imposed by the CORI act on the

scope of information that members of the general public,

employers, and landlords are entitled to receive in a CORI

report, the CORI act does not prohibit anyone from attempting to

obtain more information about the criminal history of a

particular individual from court records or from police daily

logs or arrest registers, which are presumptively public.5 See

the waiting period to seal misdemeanor convictions was further
reduced from five years to three years, and for felony
convictions, from ten years to seven years. See St. 2018,
c. 69, § 186.

5 We say that these records are presumptively public because
court records involving adults or juveniles adjudicated as
adults may be impounded, sealed, or expunged, juvenile court
records are closed to the public, entries regarding juvenile
arrests must be removed from police logs, and police logs must
be redacted where an offense is expunged. See Republican Co. v.
Appeals Court, 442 Mass. 218, 223 (2004) (court records can be
impounded and made unavailable for public inspection upon
showing of good cause); G. L. c. 276, §§ 100A, 100B, 100C
(sealing of certain probation files and court records); G. L.
c. 276, §§ 100F, 100G, 100H, 100J (expungement eligibility and
 12

G. L. c. 6, § 172 (m) (declaring that "chronologically

maintained court records of public judicial proceedings" and

"police daily logs, arrest registers, or other similar records

compiled chronologically" are "public records"). Those who are

frustrated by the amount of information available to them in a

CORI report and want to obtain a complete criminal history can

go to the clerk's office in every court house, search for every

case under the individual's name, and review the court file.

They would be limited in this endeavor only by the practical

constraints of time and expense; obtaining someone's criminal

history in this piecemeal fashion does not violate the CORI act.

See G. L. c. 6, § 178.6

Discussion. We now turn to our review of the motion for

summary judgment. "Our review of a motion judge's decision on

summary judgment is de novo, because we examine the same record

procedures); G. L. c. 41, § 98F (entries regarding juvenile
arrests); G. L. c. 276, § 100L (police logs must be redacted
where case is expunged).

6 It would, however, be a crime for a member of the public,
under false pretenses, to obtain from DCJIS or a law enforcement
agency a more comprehensive criminal history regarding the
individual than what is available under "open access." See
G. L. c. 6, § 178. Moreover, CORI reform made it a crime for an
employer to request that a prospective employee provide the
employer with his or her CORI report. See G. L. c. 6, § 172
(d). Because individuals are authorized to receive a full and
unrestricted CORI report regarding their own criminal history,
G. L. c. 6, § 175, this provision ensures that employers can
access only that information to which they are statutorily
entitled.
 13

and decide the same questions of law." Kiribati Seafood Co. v.

Dechert LLP, 478 Mass. 111, 116 (2017).

1. Exemption (a): "specifically or by necessary

implication" of the CORI act. The district attorneys assert

that under exemption (a) the Globe's requested categories of

information from the databases are "specifically or by necessary

implication" exempted from disclosure under the CORI act. In

determining whether records are "specifically or by necessary

implication" exempted from disclosure, we must exercise

considerable caution. "Because of the [public records act's]

presumption in favor of disclosure, we have said that the

statutory exemptions must be strictly and narrowly construed."

Globe Newspaper Co. v. District Attorney for the Middle Dist.,

439 Mass. 374, 380 (2003) (Middle District), quoting General

Elec. Co. v. Department of Envtl. Protection, 429 Mass. 798,

801-802 (1999). We have also said that, where the exemption

from disclosure derives from the CORI act, "it must be construed

narrowly." Middle District, 439 Mass. at 383.

The Attorney General contends that the information sought

is not CORI as defined in G. L. c. 6, § 167, and therefore not

"specifically or by necessary implication exempted from

disclosure" under the CORI act, because the Globe did not

request the names of the defendants in the database. It is

certainly true that the definition of CORI makes clear that it
 14

includes only records and data about "identifiable" individuals,

and that "[c]riminal record information shall not include . . .

files in which individuals are not directly or indirectly

identifiable." G. L. c. 6, § 167. But the absence of

defendants' names in the data request does not mean that the

individuals whose data are in the district attorneys' databases

cannot be identified.

Where the data request includes docket numbers, the

identity of the individuals in the requested databases would be

"indirectly identifiable." As set forth in Rule 5(a)(2) of the

Uniform Rules on Public Access to Court Records (Uniform Rules),

Mass. Ann. Laws Court Rules, Trial Court Rules, at 1007

(LexisNexis 2018), any person who knows the docket number of a

criminal case can learn the name of the criminal defendant in

that case through the Trial Court's public Internet portal.

This information can be learned by anyone at any place and at

any time; all that is required is access to a computer.

Once a person in possession of the requested database knows

the name of the criminal defendant from the docket number, that

person would be able to link that name to the defendant's

internal identification number -- which is one of the twenty-

three categories of information requested. The database could

then be searched for all cases with that same defendant
 15

identification number, and a criminal history of the defendant

could be compiled.

To be sure, this criminal history would be less

comprehensive than that compiled by DCJIS, because it would

include only the cases prosecuted by a particular district

attorney's office rather than all criminal cases in the

Commonwealth in which the defendant was arraigned.7 But if, as

here, the requestor seeks to obtain the same categories of

information from all the district attorneys and from the

Attorney General, the requestor would be able to cobble together

something akin to a Statewide criminal history of the defendant

that may provide substantially more information about the

defendant's criminal history than a member of the public could

obtain through a DCJIS CORI query.

Additionally, obtaining an identifiable individual's

criminal history through a public records request strips that

individual of statutory protections granted in CORI reform. For

example, G. L. c. 6, §§ 167 and 172 (g), allow any individual,

without a fee, to obtain through a self-audit the names of all

persons and entities, other than criminal justice agencies, that

have made queries to request that individual's CORI. But if a

7 The record before us does not indicate whether each of the
district attorneys uses the same defendant identification number
for an individual.
 16

criminal history could be compiled through a public records

request, that individual would not be able to learn that someone

had obtained his or her criminal history. Moreover, in contrast

with those persons who receive an individual's criminal history

through a DCJIS request, there is no legal prohibition against

further dissemination of a criminal history compiled through a

public records request. Compare G. L. c. 6, § 172 (f) ("A

requestor shall not disseminate criminal offender record

information except upon request by a subject" of query).

The Legislature, when it enacted CORI reform and granted

broader access to CORI reports while simultaneously enhancing

protections for individuals with criminal records, sought to

"recalibrate the balance between protecting public safety and

facilitating the reintegration of criminal defendants by

removing barriers to housing and employment." Pon, 469 Mass. at

307. In light of exemption (a), the public records law cannot

be interpreted to permit members of the general public to make

an end run around the CORI restrictions by allowing them to

generate criminal histories of individuals through public

records requests to prosecutors, and thereby obtain a more

extensive criminal history than they would receive through a

DCJIS query.

The Trial Court sought to avoid a comparable end run around

the CORI statutory scheme when it crafted limitations on the use
 17

of its public Internet portal under the Uniform Rules. Under

those rules, a member of the general public may obtain

electronic access to the name of the defendant and the court

docket only if he or she knows the docket number of the case;

one cannot conduct a search of a defendant by name and obtain

the dockets and case information for all the criminal cases that

relate to that defendant. See Rule 5(a)(2) of the Uniform

Rules. The rules committee of the Trial Court reasoned that

"[i]f the Trial Court were to provide the public with the

ability to remotely search criminal cases by a defendant's last

name, which could essentially reveal a defendant's entire

criminal history, it could thwart the careful balance between

access and privacy struck by the Legislature in enacting the

CORI statute." Notes to Rule 5(a)(2) of the Uniform Rules,

Mass. Ann. Laws Court Rules, Trial Court Rules, at 1009

(LexisNexis 2018). See id., quoting State House News Service,

Nov. 18, 2009 (statement of Sen. Creem) (intent of CORI reform

was to strike "a great balance . . . between providing

information that the public has a right to know and protecting

people's privacy"). The rules committee also noted that the

limitations imposed on public access to criminal history records

by the CORI act and the protections imposed by the act against

dissemination of those records by requestors "could not

reasonably be maintained if a defendant's criminal history could
 18

be pieced together through a search on the Trial Court's

website." Notes to Rule 5(a)(2) of the Uniform Rules, supra.

See New Bedford Standard-Times Publ. Co., 377 Mass. at 415

(court records that "aggregate information concerning the

criminal history of an individual" may "threaten the privacy

interests the [CORI act] seeks to protect").

There is another important reason, rooted in CORI and

criminal justice reform, to exempt docket numbers from

disclosure in this case -- to avoid frustrating the legislative

purpose regarding the sealing and expungement of cases, because

"[s]ealing is a central means by which to alleviate the

potential adverse consequences in employment, volunteering, or

other activities that can result from the existence of such

records." Pon, 469 Mass. at 307, citing G. L. c. 276, §§ 100A,

fifth par., and 100C, fourth par.

Under G. L. c. 276, § 100A, "[a]ny person having a record

of criminal court appearances and dispositions in the

commonwealth on file with the office of the commissioner of

probation" may request that the commissioner seal the file. If

the requestor satisfies all the statutory conditions, "[t]he

commissioner shall comply with the request." See id. (setting

forth statutory conditions). In addition, under G. L. c. 276,

§ 100C, the commissioner shall seal the record of court

appearances and dispositions recorded "[i]n any criminal case
 19

wherein the defendant has been found not guilty by the court or

the jury, or a no bill has been returned by the grand jury, or a

finding of no probable cause has been made by the court." In

all such sealed cases, the commissioner must notify the clerk of

the court where the proceeding took place of the sealing, who

shall seal the court record. G. L. c. 276, §§ 100A, 100C.

Where the record is sealed, if anyone other than a law

enforcement agency searches for the court record, the court

shall report "that no record exists." G. L. c. 276, § 100C.

Under G. L. c. 276, §§ 100I and 100K, with respect to some

criminal offenses that occurred before the offender was twenty-

one years of age, under certain circumstances, the person may be

eligible for expungement of the criminal record for a particular

offense by a court order. See G. L. c. 276, §§ 100I, 100J, 100K

(setting forth statutory conditions and exclusions). Where a

criminal record is expunged by order of the court, the clerk of

the court where the criminal record was created and the

commissioner of DCJIS must expunge the records within their

custody and "order all criminal justice agencies to expunge all

publicly available police logs." G. L. c. 276, § 100L (a). But

the records within the district attorneys' databases are not

included in this statutory directive. In fact, the sealing

statute does not require that a prosecutor be notified of the
 20

subsequent sealing of a case he or she prosecuted. See G. L.

c. 276, §§ 100A, 100C.

With respect to the records request here, for cases that

have already been sealed or expunged, the production of docket

numbers presents no threat. If the Globe were to search a

docket number in the Trial Court's public Internet portal, it

would receive a message that no record exists -- protecting the

identity of the criminal defendant in that case. However, if

the record produced by the district attorneys has not yet been

sealed or expunged, the Globe would be able to obtain the name

of the criminal defendant through the docket number and learn,

among other things, the nature of the offense and the

disposition of the case. And the Globe would still retain this

information even if the case were subsequently sealed or

expunged.

This access to identifiable information likely would not

present a serious threat to the legislative purpose of the

sealing and expungement statutes if the data request concerned a

single defendant or a single case. After all, if the Globe

obtains a single court record from a court house before that

case is sealed, the Globe may retain that information even if

the defendant were subsequently to seal the case. But where the

public records request, as here, seeks twenty-three categories

of information for every case in the district attorneys'
 21

databases, the concern that the request will diminish the

effectiveness of a subsequent sealing or expungement -- and

undermine the Legislature's purpose in promulgating the sealing

and expungement statutes -- is far more significant.

We have recognized in a different context the potential

danger to privacy that can emerge from the compilation of vast

amounts of personal data. See Boston Globe Media Partners, LLC

v. Department of Pub. Health, 482 Mass. 427, 440 (2019)

(Department of Pub. Health).8 We have also recognized that the

public records law does not distinguish among requesters or

permit an inquiry "into the requestor's purpose for seeking a

particular record before determining whether to release it."

People for the Ethical Treatment of Animals, Inc. v. Department

of Agric. Resources, 477 Mass. 280, 290 n.12 (2017). If the

Globe is entitled to these databases through the public records

law, individuals and businesses that seek to gather and organize

this data for profit, such as those who sell data to persons or

entities who are conducting background checks, would be equally

entitled to access to these databases. "Where criminal records

8 Indeed, in that case, the Globe itself recognized "a
greater privacy interest in 'vertical compilations' that
'aggregate information about specific individuals,' such as an
individual's criminal record, than in 'horizontal compilations'
that 'provide a limited amount of information about many
people,' such as a telephone book." Boston Globe Media
Partners, LLC v. Department of Pub. Health, 482 Mass. 427, 441
(2019).
 22

are increasingly available on the Internet and through third-

party background service providers, criminal history information

that is available only briefly to the public through official

means can remain available indefinitely, despite subsequent

sealing or impoundment." Pon, 469 Mass. at 304, citing Jacobs &

Crepet, The Expanding Scope, Use, and Availability of Criminal

Records, 11 N.Y.U. J. Legis. & Pub. Pol'y 177, 186-187, 203-208

(2008). See also Department of Pub. Health, 482 Mass. at 437

("Today's current information may be tomorrow's record protected

from public view . . . . To examine the Globe's request in a

vacuum is to ignore that an index from the present is entwined

with indices from the future").

Because the disclosure of docket numbers could lead to the

improper dissemination of criminal history about identifiable

individuals, the district attorneys contend that all twenty-

three categories of information must, as a necessary implication

of the CORI act, be withheld from disclosure. And if the public

records request were indivisible and our decision were limited

to giving the Globe all it requested or giving it none, we would

agree. But we need not, and do not, view the Globe's records

request as indivisible -- we may order the segregation and

redaction of a narrow portion of the requested records in order

to balance the presumption of public access with the protections

enacted in CORI reform.
 23

Therefore, we conclude that the extensive database sought

here by the Globe is exempt from disclosure as a public record

by necessary implication of the CORI act and of the statutes

governing sealing and expungement unless the disclosure is

redacted to ensure that none of the records are directly or

indirectly identifiable to any person. We also conclude that

this can be accomplished only by redacting the category of

docket numbers from the database to be produced, because only by

redacting the docket numbers can these records be neither

directly nor indirectly identifiable to any person. Where the

docket number is redacted, the defendant identification number

need not be redacted, because it alone will not permit any

individual to be identifiable from either the records produced

or from publicly available court records.9

We recognize that barring docket numbers from being

produced for this records request requires us to distinguish our

holding in the Middle District case, which the Superior Court

judge relied upon heavily in her decision. In Middle District,

439 Mass. at 375, the Globe sought information from the Attorney

General and each district attorney regarding the docket number,

9 The docket number is thus the "key to the castle."
Although the defendant identification number may be used to
create a criminal history for an individual, as long as that
individual is not identifiable, the defendant identification
number may be produced and the history of an unidentified
individual may be compiled.
 24

defendant name, municipality, and charge for each criminal case

pertaining to municipal corruption involving elected or

appointed officials or employees of cities and towns in the

Commonwealth. We concluded that a docket number "falls

squarely" within the definition of "chronologically maintained

court records of public judicial . . . proceedings" that are

"public records" under G. L. c. 6, § 172 (m), and must be

disclosed regardless of whether they are in the possession of

the court or the district attorney prosecuting the case. Middle

District, supra at 382. We declared:

"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 a 'court' record, and hence a 'public record,'
without regard to which entity has a copy. Put
differently, if the item sought is a court record that
could be obtained from the clerk's office, it is a public
record, and it may be obtained from any other government
official who also happens to have a copy of that same
public record."

Id. at 383-383.

But there are important distinctions which preclude the

holding in the Middle District case from controlling in this

case. In that case, the Globe's public records request was far

more narrow -- it only requested docket numbers associated with

a specific type of case and a specific type of defendant. See

Middle District, 439 Mass. at 375. That request would reveal

information about a defendant regarding a specific offense but,
 25

in contrast with the data request in this case, it would not

permit the requester, armed with these docket numbers, to

compile a criminal history of these defendants based on the

other information contained in the data request.

The court itself effectively distinguished the

circumstances in the Middle District case from the circumstances

in the instant case when it declared:

"[A]llowing 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."

Id. at 384. In short, disclosure of the docket numbers in the

Middle District case did not undermine the protections or

purpose of the CORI statute; disclosure of docket numbers in

this case, however, if produced as part of the substantial

database of case information sought here, would undermine the

CORI statute by allowing the creation of criminal histories of
 26

individuals that would not otherwise be available to members of

the general public though a query to DCJIS. This analysis

demonstrates why "a case-by case review is required to determine

whether an exemption applies." Matter of a Subpoena Duces

Tecum, 445 Mass. 685, 688 (2006).

We therefore declare that the district attorneys have

successfully met their burden of proving that disclosure of the

requested information would be exempt from disclosure under

exemption (a) of the public records law "by necessary

implication" of the CORI act and the sealing and expungement

statutes if the requested information were to include docket

numbers. However, if the docket numbers were segregated and

redacted from the requested information such that no individual

can be directly or indirectly identified from the information

obtained by the Globe, the other twenty-two categories of

information would not be exempt from disclosure "by necessary

implication" of these statutes.

2. Creation of a new record. The district attorneys also

argue that they do not have to fulfill the Globe's public

records request because it would require them to create a

computer program to compile information into a new electronic

record, a task not required under the public records law.

We have not previously addressed what constitutes the

creation of a new record. The disclosure obligation under the
 27

public records law applies only to information that is in the

possession of a governmental entity, regardless of whether its

form is paper or electronic. See G. L. c. 66, § 10 (a) ("A

records access officer . . . shall at reasonable times and

without unreasonable delay permit inspection or furnish a copy

of any public record . . . provided that . . . the public record

is within the possession, custody or control of the agency or

municipality that the records access officer serves"); G. L.

c. 4, § 7, Twenty-sixth (public records are "materials or data,

regardless of physical form or characteristics, made or

received" by public entity). Thus, we understand § 10 (a) to

mean that a member of the public may not, through a public

records request, require an agency or municipality to create new

documents that do not already exist. See National Labor

Relations Bd. v. Sears, Roebuck & Co., 421 U.S. 132, 161-162

(1975) (refusing to order Federal agency to create "explanatory

material" through Freedom of Information Act request because

would require agency to create new documents); Guide to the

Massachusetts Public Records Law, Secretary of the Commonwealth,

Division of Public Records (updated Jan. 2017) at 9, 31. See

also Rep. A.G., Pub. Doc. No. 12, at 165 (1977) (public records

law generally does not require boards to prepare lists of public

information, but only requires that they permit inspection and

provide copies of records in their possession).
 28

But where public records are in electronic form, as they

increasingly are and will be, a public records request that

requires a government entity to search its electronic database

to extract requested data does not mean that the extracted data

constitute the creation of a new record under the public records

law. This interpretation of the public records law is supported

by the regulations promulgated by the supervisor, who is

required to adopt regulations to implement the public records

law. See G. L. c. 66, § 1. Under those regulations, when a

governmental entity is designing or acquiring an electronic

record keeping system or database, it "shall ensure, to the

extent feasible" that it "allows for information storage and

retrieval methods permitting retrieval of public portions of

records to provide maximum public access." 950 Code Mass. Regs.

§ 32.07(1)(e)(2) (2017). The regulations declare:

"[F]urnishing a segregable portion of a public record shall
not be deemed to be creation of a new record. This applies
to a responsive record in the form of an extract of
existing data, as such data exists at the time of the
request and is segregable from nonresponsive and exempt
data."

950 Code Mass. Regs. § 32.07(1)(f).

The duly promulgated regulations of the supervisor "are

presumptively valid and 'must be accorded all the deference due

to a statute.'" Craft Beer Guild, LLC v. Alcoholic Beverages

Control Comm'n, 481 Mass. 506, 520 (2019), quoting Pepin v.
 29

Division of Fisheries & Wildlife, 467 Mass. 210, 221 (2014).

"The burden of demonstrating invalidity rests squarely on the

party challenging the regulation," Craft Beer Guild, LLC, supra,

which here are the district attorneys, and they have not cited

the regulation or argued that it "is contrary to the plain

language of the [public records] statute and its underlying

purpose." Massachusetts Teachers' Retirement Sys. v.

Contributory Retirement Appeal Bd., 466 Mass. 292, 301 (2013),

quoting Duarte v. Commissioner of Revenue, 451 Mass. 399, 408

(2008).

Federal courts, in interpreting the Freedom of Information

Act (FOIA), 5 U.S.C. §§ 552 et seq., have also held that

electronic database searches do not involve the creation of new

records. See National Sec. Counselors v. Central Intelligence

Agency, 898 F. Supp. 2d 233, 270 (D.D.C. 2012) ("In responding

to a FOIA request for 'aggregate data,' . . . an agency need not

create a new database or reorganize its method of archiving

data, but if the agency already stores records in an electronic

database, searching that database does not involve the creation

of a new record. Likewise, sorting a pre-existing database of

information to make information intelligible does not involve

the creation of a new record . . ."); People for the Am. Way

Found. v. United States Dep't of Justice, 451 F. Supp. 2d 6, 14
 30

(D.D.C. 2006). See also Yeager v. Drug Enforcement Admin., 678

F.2d 315, 321 (D.C. Cir. 1982). As one Federal court reasoned:

"[S]orting a pre-existing database of information to make
information intelligible does not involve the creation of a
new record because . . . computer records found in a
database rather than a file cabinet may require the
application of codes or some form of programming to
retrieve the information. . . . Sorting a database by a
particular data field (e.g., date, category, title) is
essentially the application of codes or some form of
programming, and thus does not involve creating new records
or conducting research -- it is just another form of
searching that is within the scope of an agency's duties in
responding to" public records requests" (quotations,
citation and alteration omitted).

National Sec. Counselors, supra at 270.

Several State courts have also held that conducting a query

in an electronic database does not constitute the creation of a

new record for purposes of their States' public records laws.

See, e.g., American Civ. Liberties Union of Ariz. v. Arizona

Dep't of Child Safety, 240 Ariz. 142, 148 (Ct. App. 2016);

Commonwealth of Pa., Dep't of Envtl. Protection v. Cole, 52 A.3d

541, 547 (Pa. Commw. Ct. 2012); Public Employees' Retirement

Sys. of Nev. v. Nevada Policy Research Inst., Inc., 134 Nev.

669, 676-678 (2018).

A records custodian is obligated to provide access to

existing files, "regardless of physical form or characteristics"

(emphasis added). G. L. c. 4, § 7, Twenty-sixth. If public

records are maintained in an electronic database, they must be

searchable and accessible in a reasonable and useable format so
 31

as not to undermine the purpose of the public records law. In a

world in which records and information are increasingly stored

in electronic databases, a public record that would otherwise be

subject to the public records law "does not become immune from

production simply by virtue of the method the [public entity]

employs to catalogue the document," or track the information.

American Civ. Liberties Union of Ariz., 240 Ariz. at 148,

quoting Lake v. Phoenix, 220 Ariz. 472, 481 (Ct. App.), rev'd in

part, 222 Ariz. 5147 (2009).

Here, the requested information already exists in the

district attorneys' databases, which contain certain data fields

for each case.10 Other district attorneys and the Attorney

General, with comparable databases, have already complied with

the Globe's records request, so we know it is possible. The

Globe's request, as limited by this decision, requires the

district attorneys to segregate and redact from disclosure the

category of docket numbers, but otherwise the district attorneys

need only provide a copy of preexisting data fields as

requested. We conclude that the segregation and extraction of

10That is not to say that every case in each database will
contain information in every field requested. For example, with
respect to the collection of data concerning the defendant's
race and ethnicity, the district attorneys' practices vary. But
to the extent that the information exists for each case, and it
already has been entered into the district attorneys' databases,
it must be produced.
 32

the requested information from the existing fields in the

district attorneys' databases is not the creation of a new

record but is instead the type of data recovery that is expected

in a digital world under the public records law. To be sure, we

do not underestimate the burden on staff time and resources that

the Globe's records request may impose on the district

attorneys, given the breadth of its scope, but the district

attorneys may assess a reasonable fee for the actual cost of

producing the requested information, consistent with G. L.

c. 66, § 10 (d).

Conclusion. We affirm so much of the judgment as orders

the district attorneys within ninety days to produce the

requested information from their case management databases,

except for the docket numbers of each case, which shall be

segregated and redacted from the information provided. We also

affirm so much of the judgment as declares that the categories

of requested data are public records under the public records

law and are not exempt from disclosure, but only to the extent

that these records do not directly or indirectly identify any

defendant, which requires the segregation and redaction of

docket numbers from the records to be produced.

So ordered.