Derek A. Capozzi v. Executive Office of Public Safety and Security - Department of State Police (SPR 20160801)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18, 2016 SPR16/801 Department of State Police Office of the Chief Legal Counsel 4 70 Worcester Road Framingham MA, 01702 Dear Office of the Chief Legal Counsel: I have received the petition of Derek A. Capozzi appealing the response of the Department of State Police (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on January 12, 2016 Mr. Capozzi requested "a copy of all releasable records, in whole or in part, (i.e. redacted if required by law) in relation to" a specific incident. Mr. Capozzi indicates he is "seeking records which reveal [third] party suspect information, and/or which would corroborate the existence of any [third] party suspect(s) or lead to such being revealed or identified .... " I will refer to this request as Request 1. Mr. Capozzi also 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 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." I will refer to this request as Request 2. Previous appeals These requests were the subject of previous appeals. See SPR16/097, 16/098 Determination of the Supervisor of Records (March 7, 2016). In my March 7 determination I found the Department properly withheld CORI pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Subsequently, Mr. Capozzi informed this office he seeks further action with respect to this matter. This appeal (SPR16/80 1) was opened as a result. I understand the Department responded to Request 1 and Request 2 in two (2) letters, both dated January 25, 2016. With respect to Request 1, the Department withheld responsive records pursuant to the Criminal Offender Record Information (CORI) statute as it operates pursuant to Exemption (a) and also cited Exemptions (c) and (f). G. L. c. 4, § 7(26)(a), (c), (f); G. L. c. 6 § 167. With respect to Request 2, the Department withheld responsive records pursuant to the Criminal Offender Record Information (CORI) statute as it operates pursuant to Exemption (a) and also cited Exemption (f). G. L. c. 4, § 7(26)(a), (f); G. L. c. 6 §167. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Office of the Chief Legal Counsel SPR16/801 Page2 October 18,2016 In correspondence with this office, Mr. Capozzi seeks a determination regarding the Department's response to Request 1. He also asks this office to reconsider the March 7 determination regarding Request 2. Purpose of request; identity of requester It should be noted that 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). Accordingly, the interest by Mr. Capozzi in the responsive records shall play no role in whether the responsive records are public records or are exempt from disclosure. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Capozzi may wish to consider another means of seeking to obtain any existing responsive records. Further, an authorized person may seek access to CORI. Mr. Capozzi should contact the Department of Criminal Justice and Information Services for more information on obtaining copies of records exempt from the Public Records Law as CORI. 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 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 CORI Act. CORI, which is statutorily exempt from disclosure, is defined as:

Office of the Chief Legal Counsel SPR16/801 Page 3 October 18, 2016 [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 I find the Department properly withheld records responsive to Request 1 and Request 2 under CORI pursuant to Exemption (a) of the Public Records Law. 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. Whereas I find the records were properly withheld as CORI I decline to opine on the Department's Exemption (c) and Exemption (f) claims. Conclusion Accordingly, I decline to reverse my March 7 determination. If any party is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court ofthe Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judi ial remedies). cc: Mr. Derek A. Capozzi