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    Healey sues district attorneys who withheld records

    03/23/2016 -Boston, MA- Massachusetts Attorney General Maura Healey during an editorial board interview at The Boston Globe in Boston, MA on March 23, 2016. (Craig F. Walker/Globe Staff) section: Business reporter: Ambrose
    Craig F. Walker/Globe Staff
    Massachusetts Attorney General Maura Healey.

    Massachusetts Attorney General Maura Healey on Wednesday sued three district attorneys who refused to release a list of the cases they have prosecuted, the first time in recent memory the attorney general has filed a lawsuit to enforce the state’s public records laws.

    The lawsuit asks a judge to rule that records the Globe Spotlight Team requested nearly two years ago are public. It was filed in Suffolk Superior Court against district attorneys representing Plymouth and Worcester counties and the Cape and Islands.

    The court action makes good on a pledge Healey made last year to work with Secretary of State William F. Galvin to force government agencies to comply with public records requests.

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    “Government accountability and transparency are key values of our office,” said Jillian Fennimore, a spokeswoman for Healey.

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    Healey’s lawsuit stems from a series of requests the Spotlight Team made to the state’s 11 district attorneys in January 2015, seeking an electronic list of criminal cases the prosecutors have filed, including the charges and the outcomes.

    The data could help shed light on the state’s criminal justice system. For instance, a 2011 Spotlight Team report used prosecutors’ data to show that some judges usually acquitted people charged with drunken driving.

    Some district attorney offices, including Essex and Middlesex counties, provided the data sought by the Globe. Other offices demanded significant fees or proposed to redact information before releasing the data, which the Globe is appealing. But the Plymouth County, Worcester County, and Cape and Islands district attorney’s offices refused altogether.

    The Worcester DA’s office argued the information was protected by attorney-client privilege, which generally covers confidential communications between attorneys and their clients. The other DAs offered a variety of reasons, including arguing the data were protected by the state’s Criminal Offender Record Information (CORI) law — which restricts access to people’s criminal history — even though the Globe wasn’t seeking the names of any defendants involved in the cases.

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    The DAs in both Plymouth and the Cape and Islands also argued the information would require “the creation of a record,” because they would need to redact some of the data. In addition, the Plymouth DA’s office cited exemptions for investigative records and personal privacy.

    The secretary of state’s office, which handles appeals for public records, rejected all the arguments from the district attorneys and repeatedly ordered them to turn over the records. When they refused, the secretary of state’s office asked the attorney general for help enforcing the orders in June.

    After meetings with the district attorneys’ offices, Healey ultimately decided to ask the court to rule the records are public. “Our office believes that the best way to provide further clarity on this issue is through the court process,” said Fennimore, Healey’s spokeswoman.

    In a joint statement, Plymouth District Attorney Timothy J. Cruz, Worcester District Attorney Joseph D. Early Jr., and Cape and Islands District Attorney Michael D. O’Keefe said they welcome the court’s guidance. “While our offices strive for transparency and provide the public and media information every day, there exists substantial disagreement concerning access to electronic records kept by our offices,” the statement said, in part.

    The lawsuit is similar to one the Globe won a decade ago.

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    In that case, the Globe asked district attorneys for a list of public corruption cases they brought. Some provided the information, but others refused, arguing the records were protected under the CORI law.

    But the Supreme Judicial Court noted that information on public court cases, like the kind the Globe was seeking, is not covered by CORI. “If the item sought is a court record that could be obtained from the clerk’s office, it is a public record,” the court ruled in 2003.

    Open government advocates praised Healey for taking steps to enforce the law after years of inaction. “I am glad to see that the attorney general is taking this law seriously,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.

    Because of a simmering dispute over how to handle public records appeals, the secretary of state’s office stopped referring cases to the attorney general’s office six years ago, forcing citizens to go to court on their own if agencies don’t comply.

    But after discussions with Healey last year, the secretary of state’s office resumed making referrals to her office.

    After the attorney general intervened, the Fall River Police Department agreed to reduce the fees it charged the Bay State Examinerfor a report. And this year, the secretary of state’s office referred three other cases to the attorney general that are still pending — two involving records held by the MBTA and another by Town of Falmouth.

    But one open government advocate lamented the fact that the appeals process takes so long and that agencies sometimes refuse to comply even when citizens win their cases.

    “It is outrageous that complying with the public records law has been seen as optional,” said Pam Wilmot, executive director of Common Cause Massachusetts, which helped lead the fight to overhaul the records law this year. “Perhaps this lawsuit will change that perception.”

    Lawmakers recently overhauled the Massachusetts public records law for the first time since the last was passed in 1973. One provision gives citizens the possibility to recoup their legal fees if they successfully win a public records lawsuit starting Jan. 1. Massachusetts is one of only three states where that is not an option.

    Todd Wallack can be reached at twallack@globe.com.