Letter to Chief Justice Gants January 27 2016

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

Page three

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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Letter to Chief Justice Gants January 27 2016