DOE 523733 v. SEX OFFENDER REGISTRY BOARD (2019)

MEMORANDUM AND ORDER PURSUANT TO RULE 1:28

The plaintiff appeals from a judgment of the Superior Court which affirmed a decision and order of a hearing examiner of the Sex Offender Registry Board (SORB) that classified the plaintiff as a level two sex offender. He claims that the hearing examiner's decision was not supported by substantial evidence and that the hearing examiner failed to explain how public dissemination of the plaintiff's information will serve a public safety interest. We remand the case in order to allow the hearing examiner to reconsider the classification in light of Doe, Sex Offender Registry Bd. No. 496501 v. Sex Offender Registry Bd., 482 Mass. 643 (2019) (Doe No. 496501).

In making a sex offender level classification, a hearing examiner must consider “the relevant and credible evidence and reasonable inferences derived therefrom to determine: (a) the offender's risk of reoffense; (b) the offender's dangerousness as a function of the severity and extent of harm the offender would present to the public in the event of reoffense; and (c) in consideration of the foregoing, whether and to what degree public access to the offender's personal and sex offender information ․ is in the interest of public safety.” 803 Code Mass. Regs. § 1.20(2) (2016). The consideration in the third prong “depends not only on the probability of reoffense and the danger posed by that potential reoffense, but also on the efficacy of online publication in protecting the public from being victimized by the offender.” Doe No. 496501, 482 Mass. at 654. A hearing examiner must “separately evaluate[ ]” the efficacy of online publication of the offender's information and “make explicit his or her findings” regarding this prong. Id. at 654, 657. If online publication will not “realistically serve to protect the public” against the offender's potential reoffense, then a level two classification is unjustified. Id. at 655.

Here, after reviewing the record and applying the SORB regulation risk factors,² the hearing examiner found that the plaintiff “presents a moderate risk to reoffend, and that his dangerousness is such that public availability of his personal information is warranted,” and ordered the plaintiff to register as a level two sex offender. The hearing examiner did not separately examine how or to what degree online publication of the plaintiff's personal and sex offender information would serve to protect the public; instead, the hearing examiner merely stated in conclusory fashion his view that “[the plaintiff's] dangerousness is such that public availability of his personal information is warranted.” We conclude that a remand for further consideration on, and explanation of, the efficacy of online dissemination is appropriate. See Doe No. 496501, 482 Mass. at 657 & n.4. We therefore vacate the judgment and remand the matter to the Superior Court for entry of an order to the hearing examiner to provide further findings in accordance with this decision.

So ordered.

Vacated and remanded.

FOOTNOTES

2.   The factors are outlined by 803 Code Mass. Regs. § 1.33 (2016).