William Jordan III v. Plymouth County Sheriff's Office (SPR 20160095)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords March 7, 2016 SPR16/095 Ms. Isabel N. Eonas, Esq. County of Plymouth Sheriffs Department 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Eonas: I have received the petition of William Jordan III appealing the response of Springfield Police Department (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Jordan requested copies of"booking photos". The Department denied his request pursuant to the Criminal Offender Record Information (CORI) Law as it operates by way of Exemption (a), the statutory exemption, and Exemption (b) of the Public Records Law. G. L. c. 4, § 7 (26) (a), (b); G.L. c. 6, § 167. 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 of the 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, § 1 0(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) In a response sent January 12, 2012, the Department informed Mr. Jordan that the requested records constitute Criminal Offender Record Information (CORI). Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute. G. L. c. 4, §7 (26) (a) OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Isabel N. Eonas, Esq. SPR16/095 Page2 March 7, 2016 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 ofLynn, 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 Criminal Offender Record Information (CORI) Act. 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 information. G. L. c. 6, § 167 Please note that the personal status of Mr. Jordan in the matter in question does not afford any greater right of access to the requested information, as 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). While the CORI Act does provide for certain individuals to have access to CORI, it is not within the jurisdiction of this office to make the determination as to which individuals will be provided access. G. L. c. 6, § 172. I find the Department may properly withhold the booking photos pursuant to Exemption (a) of the Public Records Law. Accordingly, I decline to opine on the Department's Exemption (b) claim. To assist in responding to requests for public records I refer the Department to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys and other members of my staff are available during regular business hours to answer general questions regarding the Public Records Law.

Ms. Isabel N. Eonas, Esq. SPR16/095 Page 3 March 7, 2016 In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. R ease contact my office directly at the telephone number provided in this determination for furth · formation. cc: Mr. William Jordan III