Joseph Maggiacomo III, Esq. v. Department of Criminal Justice Information Services (SPR 20161054)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams Supervisor ofR ecords December 9, 2016 SPR16/1054 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Service 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Joseph Maggiacomo III appealing the response of the Department of Criminal Justice Information Service (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Attorney Maggiacomo requested a number of records pertaining to a specifically named individual as well as personnel of the Brockton Police Department. Department denied the request pursuant to Exemption (a) and Exemption (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). Attorney Maggiacomo objected and petitioned this office. Status ofthe requester and reason for request Attorney Maggiacomo should be advised that the Public Records Law does not distinguish between requesters. His status as an attorney whose client may be the subject of the records does not give him more right of access than any other requester in the public realm. The right of requesters to inspect and obtain copies of public records is a clear statutory mandate. See G. L. c. 66, § 1 0( a) (any person may receive or inspect a copy of a public record); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976) (the public records statute does not provide a "standing requirement but extends the right to examine to "any person" whether intimately involved with the subject matter of the records he seeks or merely motivated by idle curiosity"). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. 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, § 10(c); 950 C.M.R. 32.08(4). "Public records" is broadly defined to include all documentary materials or data, regardless of physical One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Ms. Agapi Koulouris, Esq. SPR16/1054 Page 2 December 9, 2016 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 !ecord. Exemption (a) In theresponse dated October 12, 2016, Department indicated the intent to withhold responsive 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 ofLynn, 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). Exemption (f) Department also claimed Exemption (f) to withhold responsive records, "as the information may pertain to ongoing investigations that may be comprised if released." Exemption (f), the "investigatory" exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7 (26)(±) A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be

Ms. Agapi Koulouris, Esq. SPR16/1054 Page 3 December 9, 2016 withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Commissioner of Boston, 378 Mass. 281, 290 n.18 (1979). Conclusion I find the Department has not provided enough information to support the exemptions claimed. I understand an attorney on my staff telephoned you and also provided you with a copy of the appeal file. Accordingly, I will consider this appeal closed with the proviso that Department provides Attorney Maggiacomo a supplemental response to the request, in a manner consistent with this order, the Public Records Law and its Regulations. 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. Supervisor of Records cc: Joseph Maggiacomo III, Esq.