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7/25/2019 Letter to Chief Justice Gants January 27 2016
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T H E COMMONWEALTH OF MASSACHUSETTS
OFFIC E OF
THE
ATTORNEY
GENERAL
ONE
ASHBURTON PLACE
BOSTON, MASSACHUSETTS 21 8
MAURA
HEALEY
TTORNEY GENER L
TEL:
617)
727-220
www.mass.gov/ago
January 27, 2016
Hon. Ralph D . Gants
Chief Justice
Massachusetts Supreme Judicial
Court
One Pemberton Square,
Suite
2500
Boston, MA 02108-1717
Dear
Chief
Justice Gants:
In
a
let ter dated
November 9, 2015, the Court asked the Attorney General to
conduct an
inquiry
to
determine whether
anyone
at the Office
of
the Attorney General
( AGO )
had released a transcript
of
the sworn
testimony
of
House
Speaker Robert DeLeo to the Boston Globe ( Globe ). The Globe first
published excerpts from the transcript in an article dated January
23,
2011. We understand that the
Court has asked other agencies to conduct similar inquiries, as well. We write to
report
the
results
of
the
AGO's
inquiry, w hich Chief Lega l Counsel Richard Johnston
and
as General Counsel conducted at
the direction of the Attorney General.
We
have
found
no indication
whatsoever
that
anyone
at the A G O released the transcript to
the
Globe.
Background.
By way
of
background, on
May
24, 2010,
the
Court appointed
Paul
Ware
as
Independent
Counsel with
the powers
of Special
Master and
Commissioner to conduct a confidential investigation
into allegations of misconduct in the
Probation
Department. We understand that
between
May 24,
2010 and November 9,
2010,
Independent
Counsel conducted an investigation that included dozens of
witness
interviews, the taking of
testimony
of sixty-seven witnesses
under
oath,
and
the review of
525,000 documents,
including
computer evidence. One of the persons whose test imony was taken
under
oath
was
House
Speaker DeLeo, on November 1, 2010.
On November
9, 2010, the
Independent Counsel reported his
findings,
conclusions, and
recommendat ions
to the
Court
in a 307 page report.
Pending
review by the Court, the
Report
was
impounded.
On November 18, 2010, the
Court modified
the impoundment order
to allow public access to
the
Report
and
referred the Probation
Matter
to
the Office
of the Attorney General
for further
investigation,
further modifying the
impoundment
order so that the A G O had access
to the
exhibits, as well. The
transcripts
of
the
witnesses' sworn
testimony
and
memoranda of witnesses'
interviews
were
not
filed
with
the
Court
as
exhibits but
were stored electronically by the Independent Counsel.
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Letter to Chief Justice
Gants
January
27,
2016
Page
two
On
December
1, 2010, the A G O which was conducting its
own investigation
of the
Probation
Department, requested that
the
Court provide the A G O with
access to
the materials in the possession
of
the Independent
Counsel
in order to
facilitate
its
own investigation.
On
December 6,
2010,
through a
let ter
from then-Chief Justice
Marshall to
then-Attorney General Coakley, the Court allowed
the AGO's
request
for access
to
the materials
in the
possession of
the
Independent Counsel,
including
access
to the
transcripts
of
sworn testimony and m emoranda of witness interviews that
were
being stored
electronically
by the Independent
Counsel.
In the
letter,
the
Court
indicated
its understanding
- -
and
it
was the
AGO's
understanding,
as
well - -
that the
A G O would hold
the
materials in confidence. Among
the
materials
to which the
A G O
was now provided
access
was the electronically stored transcript of
Speaker DeLeo's
sworn
testimony.
Between November
18, 2010
and
September 2011, the A G O
continued its
investigation of the Probation
Department and
indicted John
J.
O'Brien,
the
former
Commissioner
of
Probation,
on charges
of
conspiracy and bribery, campaign
finance
violations, and false
reports;
and
Scott Campbell,
the former
Chief of
Staff and Deputy Treasurer
to
former Treasurer
Tim
Cahi l l
on
charges
of
conspiracy and
campaign finance
violations.
Securitv Measures Taken bv the A G O . Per the Court 's
December
6, 2010 letter, the
A G O took
measures
to ensure
that
the
materials transferred from
the
Independent
Counsel
would be
held
in
confidence.
With regard to
materials in electronic form tran sferred from
the Independent
Counsel
to the
A G O
the
A G O IT
D i v i s i on
constructed
a
secure shared
drive to store electronic data. Access to
that
drive
was
limited
to
the
A G O
staff working
on the
investigation
of
the
Probation Department's hiring practices
( the team ). The Chief
of
the Criminal
Bureau authorized individual
team members to
have
electronic
access
to the
shared
drive. The
team members accessed
the
drive
through their secure
sign
on
credentials.
On the secure
drive
was the transcript of the
sworn testimony of Speaker DeLeo.
As with
al l other
materials
stored on the secure shared drive, the transcript could only be
accessed
by
individuals on the team who had and
used secure sign
on credentials.
With regard to paper documents
transferred from
the Independent
Counsel
to the A G O the A G O
submitted to Justice
Cordy
on January 19, 2011 a proposed protocol to
ensure
they would be held in
confidence.
Justice Cordy
approved
the protocol on
January
26, 2011,
and
the paper documents were
transferred on the
same
day.
As an additional security measure, the A G O held
Grand
Jury hearings outside of the
Courthouse
in order
to ensure the
confidentiality
of
its investigation. The A G O
established
these
measures
concerning
electronically stored materials, paper materials,
and
the Grand Jury in
order
to
safeguard
the
confidentiality
of
its own investigation of
the
Probation Department
hiring practices
and
to
ensure
it
would not be compromised.
AGO Internal Inquiry in Response to this Court's Request. In
response
to
the Court 's November 9,
2015
request ,
the A G O conducted an
internal inquiry.
The
A G O focused its
investigation
on the
time
frame
November
1,
2010
to
January
23, 2011, that i s from the date the sworn testimony was
conducted
to
the
date the Globe first
published an
article
quoting from
the DeLeo
transcript. The
internal inquiry
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Letter to Chief Justice Gants
January
27, 2016
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consisted
of the following:
(1) the A G O conducted interviews
of seventeen
current and
former
A G O
employees and
Massachusetts
State
Police
troopers assigned to the A G O who were involved
in
the
investigation of the Probation Department hiring practices
and
whom the AGO
reasonably
identified as
individuals who had access to the
transcript
of the sworn testimony during the
relevant
time frame --
and found no indication that anyone gave
the
transcript
of
the sworn testimony
to the
Globe; (2)
the
A G O reviewed emails and electronic and paper
files
of the current and
former
A G O employees and
Massachusetts
State
Police
troopers
assigned
to the A G O who were involved
in
the
investigation
of the
Probation Department hiring practices and whom the A G O identified
as
individuals who had
access
to
the transcript of the sworn testimony during the relevant t ime -- and found no indication that anyone
transferred any
paper
files
or
electronic
data,
including the transcript of the sworn testimony, to anyone
at
the Globe; (3) the A G O reviewed the
architecture
of the secure shared drive, the permissions granted
to access the shared drive, and
the
protocols
that
were
in place concerning access
to the
shared drive
and electronic reco rds related
to
the
Probation Investigation
nd found no
indication
that
anyone
other than individuals involved in the investigation of the Probation Department hiring practices
was
able to access the shared
drive
or
the
transcript
of the
sworn testimony;
and (4) the A G O reviewed
documents
concerning
the
chain of custody of
the
materials transferred to
the
A G O from
the
Independent
Counsel and reviewed
the
logs showing
who
accessed
the
paper
documents
transferred
and when they
accessed
the
paper
documents
~
and
found no
indication that anyone other than
individuals involved
in
the
investigation
of the Probation
Department
hiring practices
accessed
any
documents.
Results
of
A G O
Inquiry. Based on the above review,
we
found
no
indication that
anyone
at
the
A G O
gave the
transcript
of Speaker DeLeo's
sworn
testimony to the Globe.
Please
do
not hesitate
to
contact
us
if you would
l ike
any
additional information.
Thank you.
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