Ryan Walsh v. Holyoke, City of - Police Department (SPR 20170772)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 19, 2017 SPR17/772 Officer Caron L. Porter Records Access Officer Holyoke Police Department 13 8 Appleton Street Holyoke, MA 01040-5706 Dear Officer Porter: I have received the petition of Ryan Walsh of WWLP-TVappealing the response of Holyoke Police Department (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Walsh requested "any incident reports and/or other documentation detailing a prisoner (person in custody) escaping Holyoke police custody from the police department in April and/or May 2017." In a response dated June 5, 2017, the Department denied access to responsive records under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. 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, § 10A(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, § 1O (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

Officer Caron Porter SPR17/772 Page 2 June 19, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In his appeal petition Mr. Walsh indicates he objects to the withholding of the records in their entirety. The Department cites Exemptions (a) to support withholding the responsive records. 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 office cannot order disclosure of records if a statute mandates nondisclosure. Gen. Chern. Corp. v. Dep't ofEnvtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that the Department cited to withhold the information at issue pursuant to Exemption (a) is the 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. G. L. c. 6, § 167.

Officer Caron Porter SPR17/772 Page 3 Junel9,2017 Burden ofs pecificity; segregable portions In the Department's June 5th response you indicate "[t]he records requested contain CORI. As a result, such information must be withheld under the law." Although this response cites the statutory language of the CORI Act, it does not provide further specificity regarding how this exemption applies to withhold all responsive records. Therefore, I find the Department has not met its burden to withhold the responsive records in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). I understand a Public Records Division staff attorney contacted you and provided a copy of the file associated with this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Walsh with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Ryan Walsh