Beaudet, Mike v. Executive Office of Public Safety & Security (SPR 20140272)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords May 29,2014 SPR14/272 Mr. Mike Beaudet 25 Fox Drive P. 0. Box 9125 Dedham, MA 02027 Dear Mr. Beaudet: This office has received your petition appealing the response of the Executive Office of Public Safety and Security (EOPSS) to your request for public records. See G. L. c. 66, § 10(b); see also 950 C.M.R. 32.08(2). Specifically, you requested copies of records regarding a specifically identified incident that occurred at Logan Airport. Burden of a Records Custodian "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, created or received by any officer or employee of any Massachusetts governmental entity, unless falling within a statutory exemption. See G. L. c. 4, § 7. In response to your records request, David Procopio, Director of Media Relations for the Department of State Police (Department) stated that "no public record was created." This response was unclear and incomplete, and failed to identify whether there exists any records responsive to your request. Both EOPSS and the Department are reminded of its burden as a records custodian, which requires that all requests for public records must be met with a written response within ten (1 0) calendar days ofthe request. See G. L. c. 66, § 1 O(b ); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Department initially failed to satisfy this burden by failing to identify the records that may be responsive to your request. In a May 5, 2014 email to you, Terrel Harris, Director of Communications, notified you that EOPSS was withholding a responsive record pursuant to the CORI statute. The OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Mike Beaudet SPR14/272 Page Two May 29,2014 Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10 (c ) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). In its response, EOPSS again failed to satisfy its burden in responding to this records request. The response included no specificity with respect to the applicability of the exemption claimed and EOPSS is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Exemption (a) In response to the query by an attorney on my staff, EOPSS Assistant General Counsel Laura Weierman provided additional information with respect to your request in an email dated May 19, 2014. According to Assistant General Counsel Weierman, EOPSS is withholding two responsive records as Criminal Offender Record Information (CORI) pursuant to G.L. c. 6, §§ 167-8 as it operates under Exemption (a) of the Public Records Law. This exemption allows for the withholding of records which are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, § 7(26)(a) A governmental entity may use Exemption (a) as a basis for withholding requested materials where the language of the exempting statute suggests that the public's right to inspect records under the Public Records Law is restricted. Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The May 19th email from Assistant General Counsel Weierman was the first instance in which a second responsive record was identified, despite prior communications to you from two individuals regarding the existence of any responsive records. EOPSS is again reminded of its burden to identify all responsive records when responding to a public records request. It must also be noted that this response was only provided subsequent to the intervention of my office. I wish to thank Assistant General Counsel Weierman for her cooperation in assisting EOPPS in meeting its burden under the Public Records Law. 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. This office currently defers to the DCJIS interpretation of CORI, which holds that the "initiation of criminal proceedings" occurs at "the point when a criminal investigation is sufficiently

Mr. Mike Beaudet SPR14/272 Page Three May 29,2014 complete that the investigating officers take actions towards bringing a specific suspect to court." Based on the information provided to this office, it is my finding that the two responsive records fall within the DCJIS definition of CORI and may be permissibly withheld pursuant to Exemption (a). Despite its initial failures with respect to responding to your request, EOPSS has satisfied its burden in showing that the requested information is exempt from disclosure. Accordingly, this administrative appeal is closed. Supervisor of Records cc: Ms. Laura Weierman, Esq.