Todd A. Melanson v. Department of Criminal Justice Information Services (SPR 20170277)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 7, 2017 SPR17/277 Ms. Agapi Koulouris Department of Criminal Justice Information Services . 200 Arlington Street Suite 2200 Chelsea, MA 02150 Dear Ms. Koulouris: I have received the petition of Todd Melanson appealing the response of the Department of Criminal Justice Information Services (DCJIS) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Melanson requested "a copy of the Commonwealth of Massachusetts Department of Criminal Justice Information Services report on the Townsend Police Force and its officers in regard to illegal background checks dated February 2017 and mentioned in the Townsend Chief of Police press release of February 10, 2017." In a letter dated February 27, 2017, DCJIS denied his request, claiming that the responsive record is exempt from disclosure in its entirety. DCJIS withheld this information under Exemptions (a), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a)(c)(f). This information was also withheld under G. L. c. 6, § 172. 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, § lOA(d); 950 C.M.R. 32.03(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, § lO(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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. 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 SPR17/277 Page 2 March 7, 2017 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c) Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). For example, "employment applications, employee work evaluations, disciplinary

Agapi Koulouris SPR17/277 Page 3 March 7, 2017 documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption ( c ). Id. Exemption (I) Exemption (f) 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). 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, 3 78 Mass. 281, 290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. DCJIS's February 2J1h response did not contain the specificity required in a denial of access to public records. While DCJIS claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, DCJIS did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." DCJIS must revise their response in order to withhold records under Exemptions (a), (c), and (f). Subsequent to the intervention by a member of the Public Records Division staff, this office was notified that a supplemental response would be provided without delay. DCJIS has clarified that the specific records mentioned in Mr. Melanson's appeal are not in their custody. In his appeal, Mr. Melanson states, "There were copies of that redacted report issued to the Town of Townsend and a few other individuals." DCJIS explained that they do not have copies of the "redacted report." Rather, any redactions and releases of this material were made independently by the Town of Townsend, and DCJIS is not involved. If you wish to obtain more information regarding your request and this specific matter, DCJIS has provided a possible custodian to contact. The Town of Townsend's Town Administrator is the custodian who has custody of the aforementioned "redacted report." In light of this, further requests of this nature should be directed to:

Agapi Koulouris SPRl 7/277 Page 4 March 7, 2017 James M. Kriedler, Jr. Town Administrator Town of Townsend 272 Main Street Townsend, MA 01469 Whereas this matter was opened based upon DCJIS 's failure to provide a complete written response, I will now consider this administrative appeal closed with the proviso that DCJIS issues a supplemental response to Mr. Melanson provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. Mr. Melanson may appeal the substantive nature ofDCJIS's response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mr. Todd A. Melanson