Jason Pugatch v. Executive Office of Public Safety and Security - Department of Correction (SPR 20160464)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams July 14, 2016 Supervisor ofR ecords SPR16/464 Mr. Christopher Fallon Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Mr. Fallon: I have received the petition of Jason Pugatch appealing the response of the Massachusetts Department of Correction (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Pugatch requested a copy of records associated with an incident that occurred at MCI Cedar Junction in 2000. The Department provided responsive records. With respect to a video recording of the incident, the Department offered to provide viewing access to you but denied Mr. Pugatch's request for a copy of the video recording, as it contained "identifiable inmates," and was therefore exempt from disclosure as Criminal Offender Record Information (CORI) that is exempt from disclosure by statute. See G. L. c. 4, §7(26) (a); G. L. c. 6, §167. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lO(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, § 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). 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. CORI Exemption (a), known as the statutory exemption, permits the withholding of records that are: OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Christopher Fallon SPR16/464 Page 2 July 14, 2016 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 records pursuant to Exemption (a) is the Criminal Offender Record Information (CORI) Act G. L. c. 6, § 167. 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. Order I find the Department properly withheld the responsive record. I further find the public interest was satisfied by the Department's offer to permit Mr. Pugatch to view the video record. ;;ttM Shawn A. Williams Supervisor of Records cc: Mr. Jason Pugatch