Derek A. Capozzi v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160097)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 7, 2016 SPR16/097; SPR16/098 Executive Office of Public Safety and Security Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham MA, 01702 Dear Office ofthe Chief Legal Counsel: I have received the petition of Derek A. Capozzi appealing the response of both the Executive Office of Public Safety and Security (EOPSS) and 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. Capozzi requested, "[a]ny and all existing or known statements alleged to have been made by myself, or by any other individual acting on behalf of if myself, naming or implicating any other person(s) in any criminal activity whatsoever to any person acting as an agent of the government or state while knowing such to be the case". The Department of State Police Office of the Chief Legal Counsel responded on behalf of both the Department and EOPPS. It its letter the Office of the Chief Legal Counsel explained that that the requested records were being withheld pursuant to the Criminal Offender Record Information statute as it operates pursuant to Exemption (a), the statutory exemption and Exemption (f), the investigatory exemption to the Public Records Law. G. L. c. 4, § 7(26)(a)(f); G. L. c. 6 §167. Given that related records were requested from both departments, both appeals will be addressed by this determination. Exemption (a) 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) 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 OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Office ofthe Chief Legal Counsel SPR16/097; SPR16/098 Page2 March 7, 2016 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 and EOPPS 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 In his requests Mr. Capozzi provided a "Certification of Identity and a Third Party Release Statement" to assist in obtaining responsive records. The personal status of Mr. Capozzi 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 and EOPPS properly wit d C RI pursuant to Exemption (a) of the Public Records Law. Accordingly, I decline to op'ne o ervisor of Records cc: Mr. Derek A. Capozzi