Joseph Maggiacomo III, Esq. v. Department of Criminal Justice Information Services (SPR 20170100)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 2, 2017 SPR17/100 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Joseph Maggiacomo III, Esq. appealing the response of the Department of Criminal Justice Information Services (DCJIS) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Attorney Maggiacomo requested access to an audit of all Registry of Motor Vehicle driver license checks of a specifically identified individual conducted by any member of the Brockton Police Department on or about I April11, 2012. Prior appeal The requested information was the subject of a prior appeal. See 16/1054 Supervisor of Records Determination (December 9, 2016). The Supervisor ofRecords determined that the October 12,2016 response by DCJIS did not provide the required specificity to support its denial of records pursuant to Exemptions (a) and (f). An attorney on my staff discussed this request with you in a telephone conversation in November 2016, and you agreed to provide a supplemental response to fully explain the non-public disclosure. In a December 7, 2016 supplemental response sent to Attorney Maggiacomo and this office, the specificity necessary was provided. Attorney Maggiacomo has appealed the December i 11 response. 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 with a client who may have an interest in the responsive records does not afford any greater 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, § 10(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 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

Agapi Koulouris, Esq. SPR17/100 Page 2 February 2, 2017 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 ofthe circumstances of the requester. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be restricted by the Public Records Law, it does not mean that a party cannot seek to obtain the same records through the judicial process. Commonwealth v. Wanis, 426 Mass. 639 (1998). Accordingly, the status of Attorney Maggiacomo or his client will play no role in a determination as to whether the records should be disclosed to the public. 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 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). 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. Glomarization Principle In the December i 11 response, you informed Attorney Maggiacomo that the DCJIS is invoking the "Glomarization Principle" in response to the request for the records. "Glomarization" is defined as the practice by which a public agency neither confirms nor denies the existence of an investigation. In this instance, the mere acknowledgement that a certain record exists or that an investigation took place or is taking place can provide valuable information to requesters and hinder intelligence operations. Bassiouni v. CIA, 392 F.3d 244, 246 (1st Cir.2004); Antonelli v. Federal Bureau oflnvestigation, 721 F.2d 615,618 (1983). See generally, Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir.1976). Exemption (f) In addition to the "Glomarization Principle" DCJIS has asserted that to the extent that the records are in existence, or that an investigation was conducted or is being conducted, DCJIS will withhold the requested records as investigatory records pursuant to Exemption (f) of the

Agapi Koulouris, Esq. SPR17/100 Page 3 February 2, 2017 Public Records Law. 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)(f) 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 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). In your December response, you explain that DCJIS is the state agency that is statutorily mandated to manage and maintain the Criminal Justice Information System (CJIS), an automated system that provides critical criminal justice-related data. The CJIS contains data regarding criminal records, such as arrests, wanted and missing person information, criminal background checks and restraining orders. The CJIS also allows access to external sources, such as the National Law Enforcement Telecommunications System and the interstate criminal justice and public safety network that allow access to the system by law enforcement, criminal justice and public safety related information, including motor vehicle registration information. The requested records are audit documents of"off-line searches," that contain highly sensitive and confidential information that can only be accessed by law enforcement personnel across the Commonwealth of Massachusetts (Massachusetts) and nationally, twenty-four hours per day and seven days per week. G. L. c. 6, § 167A and G. L. c. 6A, § 18. DJIS's audit function is an investigatory tool used solely by law enforcement on the municipal and state level as well by the Federal Bureau oflnvestigations (FBI) and the Department of Homeland Security in the course of conducting criminal investigations of which the subjects of the inquiries are unaware. Your December response explains that DCJIS, as the FBI designated CJIS Systems Agency for Massachusetts, has the overall responsibility for the administration and usage of CJIS within a state. Due to that designation, DCJIS is subject to federal laws and regulations, and is required to enforce the FBI policies regarding monitoring system use, enforcing the system discipline and security, and assuring that all users follow the operating procedures. The CJIS security policy states: "its criminal justice information system may not be assessed, including all applications, databases, equipment and services .... [Except] for official criminal justice purposes only in the performance of criminal justice duties as defined by applicable state and federal laws." See FBI CJIS Security Policy, Version 5.5, Appendix A-1.

Agapi Koulouris, Esq. SPR17/100 Page 4 February 2, 2017 DCJIS posits that disclosure of audit records would reveal the existence of any ongoing confidential, criminal investigations and that disclosure could potentially compromise current or future investigations. Moreover, disclosure of audit records (off-line searches) in response to public records requests would set a dangerous precedent and could compromise all potential criminal investigations in Massachusetts and with FBI or Homeland Security on a federal level. Initially, DCJIS did not provide the level of specificity necessary to withhold the records, however based on the November 2016 telephone conversation with an attorney on my staff and DCJIS' s December ih supplemental response, I find that DCJIS may properly withhold the requested records or information pursuant to Exemption (f). Whereas, Exemption (f) will allow DCJIS to withhold the information from public disclosure in its entirety, I find that it is not necessary to analyze the Exemption (a) claim. Accordingly, whereas DCJIS has provided the specificity required by the Public Records Law and may properly withhold the requested records pursuant to Exemption (f), this administrative appeal is closed. If Attorney Maggiacomo is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Joseph Maggiacomo III, Esq.