Wallack, Todd v. Executive Office of Public Safety and Security - Department of State Police (SPR 20140767)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords March 18,2015 SPR14/767 Mr. Glenn M. Rooney, Esq. Department of State Police Office of the Legal Advisor 470 Worcester Road Framingham, MA 01702 Dear Attorney Rooney: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Department of State Police (Department) to his request for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Wallack requested electronic copies of Department photos, including booking photos if any, for seven (7) specifically Department officers. In a previous public records appeal, the Department informed Mr. Wallack that the Department does not maintain any records known as "duty photos," and only occasionally, the Media Relations Section takes and publishes photos of Department members, which may include portraits. The Department also informed Mr. Wallack that the Department is withholding any booking photos that may be in the custody of the Department pursuant to the Criminal Offender Record Information Act (CORI). A government record custodian may withhold a record as CORI if it is a record compiled by the Department concerning an identifiable individual and relates to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. The Department withheld any responsive booking photographs as CORI both by statute and by regulation as a record created as the result of initiation of a criminal proceeding. See G. L. c. 6, § 167. 803 C.M.R. 7.10. By regulation this "initiation of criminal proceedings" as is now defined as "[t]he point at which a criminal investigation is sufficiently complete that the investigating officer(s) take action toward bringing a specific suspect to court." 803 C.M.R.7.02. Accordingly, whereas, the requested booking photographs fall within the definition of CORI, I find that the Department acted appropriately in withholding the requested booking photographs as CORI. OneAshburton Place, Room 1719, Boston, Massachusetts 02108. (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Glenn M. Rooney, Esq SPR14/767 Page Two March 18, 2015 In the Department's written response, Mr. Wallack was denied access to any photos maintained by the Department, other than the booking photographs relative to the seven individuals he specifically named, pursuant to Exemptions (a), G) and (n). The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any town ofthe Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10 ( c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). Exemption (a) The Department posits that Exemption (a) applies to withhold the photos held by the Department because the Legislature has exempted personnel, firearms identification or similar licensing photos from disclosure. Exemption (a) of the Public Records Law merits consideration. Exemption (a) allows the withholding of those records that 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 ofLynn, 377 Mass. 151, 154 (1979); Ottaway Newspaper Company v. Appeals Court, 372 Mass. 539,545-46 (1977). The Department contends that any officer photos the Department has in its custody cannot be disseminated because the federal Drivers Privacy Protection Act (DPPA) limits dissemination of all "personal information" collected by the Registry of Motor Vehicles (RMV) in connection with a motor vehicle record, including photographs. The DPP A protects "personal information" contained in a state motor vehicle record, such as the drivers' license number or driver's identification number, vehicle identification number and the name and address of the license holder, and the identification photograph taken by the state RMV to be used on the motor vehicle license itself. See 18 U.S.C. § 2725(3).

Mr. Glenn M. Rooney, Esq. SPR14/767 Page Three March 18, 2015 The personal information created by the RMV is normally used for its own purposes of providing a motor vehicle license or motor vehicle registration to the individual who is the applicant for the license or registration. While the State Police may under some instances obtain this personal information from the RMV in order to carry out its normal day-to-day business, such as verifying motor vehicle registrations and licenses, the Department has not indicated that the photographs are in fact photographs taken by the RMV for use on an officer's motor vehicle license. Therefore, I find that the Department's exemption claim under Exemption (a) and the DPP A will fail to allow the Department to withhold the responsive photographs. Exemption (j) The Department again claims that the Legislature has expressed a clear judgment that care must be taken to protect those who own or possess firearms. The Department is withholding the photographs pursuant to Exemption G) in the Public Records Law. Exemption G) allows a record custodian to withhold: the names and addresses of any persons contained in, or referred to in, any applications for any licenses to carry or possess firearms issued pursuant to chapter one hundred and forty or any firearms identification cards issued pursuant to said chapter one hundred and forty and the names and addresses on sales or transfers of any firearms, rifles, shotguns, or machine guns or ammunition therefore, as defined in said chapter one hundred and forty and the names and addresses on said licenses or cards G. L. c. 4, § 7(26)G) The Department's reliance on Exemption G) of the Public Records Law to withhold photographs of its officers simply because the names and addresses of any persons who have applied for a license to carry or possess a firearm are protected by the exemption is misplaced. The purpose of Exemption G) is to protect individuals (other than police officers) with devious motives from ascertaining the identities of those who possess firearms. Chapter one hundred and forty which controls firearm licensing is void of any reference to the application of this chapter to police officers. By virtue of their employment, police officers often carry and possess firearms in order to carry out the day to day law enforcement duties. Therefore, I fail to see how the photographs can properly be withheld under Exemption G). Exemption (n) The Department cites Exemption (n) as a basis for withholding photographs of the Department's officers because exemption (n) exempts information and records from public disclosure which relates to the security of perscms or which may jeopardize public safety if

Mr. Glenn M. Rooney, Esq. SPR14/767 Page Four March 18,2015 released. You state that in the reasonable judgment of the Department, the release of photos which are maintained by the Department in the context of personnel, firearms identification or similar licensing function would create a risk to public safety and such release would not be in the public interest. Exemption (n) applies to: [r]ecords, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (b) of section 10 of chapter 66, is likely to jeopardize public safety G. L. c. 4, § 7(26)(n) Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. Some examples of information that may jeopardize public safety may be a list or record showing where law enforcement personnel may be staged in an emergency situation and how many officers may respond to a given situation. This information, if released may jeopardize the public by giving an unfair advantage to someone with nefarious intentions, who could prevent the law enforcement officers from properly responding. The Department has failed to provide any concrete examples of how the public's safety would be jeopardized by releasing photographs of the Department's officers. I find that disclosure of photographs of the Department's officers is not likely to jeopardize public safety, therefore the Department may not withhold the photographs under Exemption (n). In summary, I find that the Department has failed to prove that Exemptions (a) DPPA, G) and (n) allow for the withholding of the officers' photographs. Please be advised, that by statute police officers are required to carry photo identification, and produce that photo identification if requested by a member of the public. See G. L. c. 41, § 98D. Therefore, it is my understanding that the Department should be in custody of identification photos of its officers. Accordingly, the Department is hereby ordered to provide the photographs of the specifically named officers requested by Mr. Wallack within ten (1 0) days with the exception of any booking photos properly withheld as CORI. If the Department is planning to charge Mr. Wallack for the cost of providing him with electronic copies of the photographs, you must send

Mr. Glenn M. Rooney, Esq. SPR14/767 Page Five March 18, 2015 Mr. Wallack a written, good faith estimate. Once Mr. Wallack pays the estimate, he must receive the photographs. Failure to comply with this administrative order may result in Mr. Wallack filing a complaint in Superior Court. 1ams Supervisor of Records cc: Mr. Todd Wallack