Evan Anderson v. Boston, City of - Police Department (SPR 20160236)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April 20, 2016 SPR16/236 Lieutenant Detective Michael P. McCarthy Director of Media Relations City of Boston Police Department One Schroeder Plaza Boston, MA 02120-2014 Dear Lieutenant Detective McCarthy: I have received the petition of Evan Anderson appealing the response of the City of Boston-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. Anderson requested copies of all records of arrests or detentions performed by the Department between April15, 2013 and May 1, 2013. The Department denied Mr. Anderson's request on March 21, 2016, claiming that the responsive records are Criminal Offender Record Information (CORI) and may be withheld pursuant to G. L. c. 6, §§ 167-178. Mr. Anderson appealed the response. Department failed to provide a timely response While the Department sent Mr. Anderson an acknowledgment email within six days stating that his request had been received, the Department did not send Mr. Anderson the actual written response until March 21, forty-six (46) days after receipt of Mr. Anderson's request. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § 10(b); 950 C.M.R. 32.05. The response may be an offer to provide the records, a denial which cites an exemption with specificity, or a written, good faith estimate. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Lieutenant Detective Michael P. McCarthy SPR16/236 Page 2 April20, 2016 Exemption (a)- COR! Act Initially, the Department indicated its intent to withhold the arrest records pursuant to Exemption (a) of the Public Records Law. 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 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 information pursuant to Exemption (a) is the Criminal Offender Record Information Act (CORI), G. L. c. 6, § 167. The CORI Act, 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. The requested arrest records relate to individuals against whom criminal proceedings were initiated. The term "initiation of criminal proceedings" is not defined by the Regulations promulgated by the Department of Criminal Justice Information Services (DCIJS). Therefore, questions, interpretations and opinions concerning the CORI Act and its Regulations are the authority ofDCJIS and should be directed to DCJIS. The Department provided Mr. Anderson with the total number of arrests that were made by the Department across the city from April15, 2013 through May 1, 2013. In an April15,

Lieutenant Detective Michael P. McCarthy SPR16/236 Page 3 April20, 2016 2016 telephone conversation with an attorney on my staff, you indicated that the Department is willing to provide Mr. Anderson the arrest reports, if those are the records he seeks; however the Department must segregate (redact) exempt data and information from the records, including CORI. Accordingly, I will consider this appeal closed with the proviso that the Department, within ten (1 0) days of this order, provide Mr. Anderson with a response to the request or the arrest reports, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Anderson a written explanation, with specificity, how a particular exemption applies to each record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, the Department must provide the records. To assist in requesting and responding to requests for public records I advise a review of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staffwill visit a records custodian in person to conduct training workshops on the ublic Re~frds Law upon request. t'· Please contact my office directly at the telephone numb r b I w f~further information. Vey7 S A.:.Ls pervisor?r~~~ords cc: Mr. Evan Anderson