Lisa Zullo v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160285)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Shawn A, Williams Supervisor of Records

May 4, 2016 SPR16/285

Mr. Glenn M. Rooney, Esq. Department of State Police

Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702

Dear Attorney Rooney:

I have received the petition of Lisa Zullo appealing the response of Department of State Police (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.MLR. 32.08(2). Specifically, Ms. Zullo requested copies of records regarding a specifically identified individual resulting in charges in violation of G. L. c. 94C §§32C, 32J, G. L. c. 265 §23 and G.L. c. 272 §34. In aresponse dated April 14, 2016 the Department denied her request pursuant to the Criminal Offender Records Information statute G. L. c. 6 §172 as it operates by way of Exemption (a), the statutory exemption to the Public Records Law. G. L. c. 4 §7(26)(a).

Exemption (a) Exemption (a) 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).

One Ashburton Place, Room 1719, Boston, Massachusetts 02108 - (617) 727-2832 - Fax (617) 727-5914 www.sec.state.ma.us/pre

Mr. Glenn M. Rooney, Esq. SPR16/285 Page 2 May 4, 2016

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

In her petition to this office Ms. Zullo references G. L. c. 6 §172(a)(4) which provides that any member of the general public may upon written request to the ‘department’ and in accordance with regulations established by the ‘department’ obtain certain criminal offender record information, as a means of obtaining the responsive records. “Department” is defined in that statute as the Department of Criminal Justice Information Services (DCJIS) established pursuant to G. L. c. 6 § 167A. 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.

Accordingly, I find the Department properly withheld CORI pursuant to Exemption (a) of the Public Records Law. Ms. Zullo may wish to contact DCJIS directly for more information on obtaining criminal offender record information.

Supervisor of Records

ce: Ms. Lisa Zullo