Billard, Justin v. Director, Office of Media Relations (SPR 20140167)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords March 18,2014 SPR14/167 Mr. Justin D. Billard Downtown Investigations 153 Main Street, Suite 1C Medford, MA 02155 Dear Mr. Billard: I have received your petition appealing the response of the City of Boston Police Department (Department) to your request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of police reports related to two specifically named individuals. The Department provided certain records and denied access to others pursuant to Exemptions (a), (c) and (f) of the Public Records Law. Please note that the status of a requestor of records does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). The Department explained that the responsive records it did withhold fall within the definition of Criminal Offender Record Information (CORI) which operates through Exemption (a) the statutory exemption of the Public Records Law. See G. L. c. 6 § 167. Exemption (a) Exemption (a), permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Justin D. Billard SPR14/167 Page Two March 18, 2014 A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that permits the Department to withhold certain records pursuant to Exemption (a) is the CORI Act. G. L. c. 6, § 167. CORI, which is statutorily exempt from disclosure, is defined as: [A ]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence infom1ation. G. L. c. 6, § 167 The requested records relate to a named individual against whom criminal proceedings were initiated. The tern1 "initiation of criminal proceedings" is not defined in the CORI statutes. The Department of Criminal Justice Information Services (DCJIS) is conferred with the authority to promulgate and interpret regulations regarding CORI. G. L. c. 6, § 168. DCJIS Counsel has stated that records such that are the subject of this appeal fall under DCJIS's definition ofCORI, a conclusion to which I concur. In both your correspondence to the Department as well as your petition to this office you pose a number of questions. Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. I do find, however, that while not obligated to do so under the Public Records Law Attorney Geraghty did respond to your questions, and did do his best to provide the non-exempt responsive records.

Mr. Justin D. Billard SPR14/167 Page Three March 18, 2014 The judicial discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that material exempt from disclosure under the Public Records Law may be available to certain parties through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998) (material exempted from disclosure pursuant to the Public Records Law is not automatically privileged from discovery if a criminal defendant moves for its production). It may be preferable for you to access the responsive records through the judicial process given that un-redacted copies of the records could be made available to you. Accordingly, it is the finding of this office that the Department acted appropriately in withholding the requested reports as CORI. This administrative appeal is now closed. illiams Supervisor of Records cc: Boston Police Office of the Legal Advisor