Julian Castle Logan v. Everett, City of - Police Department (SPR 20170773)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 21, 2017 SPR17/773 Captain Paul Hamilton Records Access Officer City of Everett Police Department 4 5 Elm Street Everett, MA 02149 Dear Captain Hamilton: I have received the petition of Julian Castle Logan appealing the non-response of the City of Everett Police Department (Department) to a March 31, 2017 public records request. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Logan appealed the redaction of the criminal charge on the 2004 booking sheet of a person he identified in his request, and he states that the Department has not responded to this inquiry and the Supervisor of Records (Supervisor) determination regarding this redaction. Petitions to the Supervisor of Records Mr. Logan is reminded that under the new requirements in the Public Records Law, when petitioning the Supervisor for an appeal, the requester shall provide a copy of such petition to the Records Access Officer. 950 C.M.R. 32.08(1)(h). Whereas Mr. Logan did not provide the Department with his petition, a staff member in the Public Records Division provided the Department with a copy of the appeal file to assist in responding to the request. Prior appeal and determination Mr. Logan appealed, stating that the Department did not respond in ten (1 0) business days, and the current appeal, SPR17/773, was opened. Mr. Logan appealed the redaction of the criminal charge from the 2004 booking sheet provided by the Department on April24, 2017. I note that Mr. Logan has identified the subject of the booking sheet in his previous requests and petitions. See SPR17/ 609 Determination of the Supervisor of Records (May 12, 20 17). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec. state .rna. us/pre • pre@sec. state .ma. us

Captain Paul Hamilton SPR17/773 Page 2 June21,2017 In my May 12th determination, I ordered the Department to respond to Mr. Logan's March 31st request, and to provide Mr. Logan with a response that specifically explains what exemption in the Public Records Law allows the Department to redact the nature of the criminal charge against the identified person. Upon learning that another appeal had been opened, you contacted this office and provided copies of the Department's January 4, 2017 response and June 5111 response to Mr. Logan's May 22nd request. In the responses, the Department explains that it redacted the specific criminal charge concerning the identified person pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a). The Department also stated in its June 5th letter, and as Mr. Logan has stated in his March 18th letter to the Supervisor, Mr. Logan is already in receipt of all records concerning the arrest and booking of the identified person, as well as all records concerning the Master Case No. 103747 and Case No. 288508. The Department has no further records responsive to the requests. Status of the requester and reason for the request While Mr. Logan may be seeking records that pertain to his arrest and incarceration and those of another person that may have been involved in the underlying criminal matter for a post conviction matter, the Public Records Law does not distinguish between individuals seeking public records. Mr. Logan should be advised that his status as the subject of the records offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § 1O (a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content ofthe record, regardless of the circumstances ofthe requester. Accordingly, Mr. Logan's status will play no role in a determination regarding the Public Records Law. Mr. Logan should be advised that the appeal process under the Public Records Law shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(1)(a). Whereas the records are elated to Mr. Logan's conviction, he has a unique right of access through the judicial process. 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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist.

Captain Paul Hamilton SPR17/773 Page 3 June 21, 2017 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of · establishing the applicability of an exemption). Exemption (a) Mr. Logan has asked to be provided with an un-redacted copy of the booking sheet showing the named individual's criminal charge. As the Department explained in January 2017 and in its June 51 h letter, the Department withheld the criminal charge pursuant to the CORI Act as it operates through 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 of Lynn, 3 77 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. Dept. of Envtl. Quality Eng' g, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that permits the Depmiment to withhold the nature of the criminal charge pertaining to a named individual is the CORI Act. See 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. Mr. Logan was advised by the Department, both in its January and June responses, that the CORI pertaining to an identified person is restricted by the Act. See G. L. c. 6, § 167. Any further inquiries regarding the applicability of the CORI Act to the responsive records should be directed to the Department of Criminal Justice Information Services (DCJIS), as DCJIS is the agency that has authority to render decisions concerning the CORI Act.

Captain Paul Hamilton SPR17/773 Page 4 June 21, 2017 Conclusion Accordingly, whereas I find that the Department has provided all responsive records and has restricted certain of the information in the booking sheet under Exemption (a) and the CORI Act, this appeal is closed. If Mr. Logan 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: Julian Castle Logan