David G. Magraw v. Walpole, Town of - Police Department (SPR 20171004)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 31, 2017 SPR17/1004 Judy R. Decker Walpole Police Department 972 Main Street Walpole, MA 02081 Dear Ms. Decker: I have received the petition of David Magraw appealing the response of the Walpole Police Department (Department) to a request for public records. G. L. c. 66 § 10A;see also 950 C.M.R. 32.08(1). Specifically, on July 6, 2017, Mr. Magraw requested a copy of a specified detective's "six page report" as well as "copies of any and all other reports, that were made by any other officers, of their involvement" in a specific case. Mr. Magraw also requested copies of the interview reports of neighbors and "all the people that were interviewed by personnel of your Department between July 23, 1990 and December 1994." On July 14,2017, the Department denied access to the records under the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). 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)(l)(iv); 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, § lOA( d)(l)(iv); 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. If there are any fees associated with a response a written, itemized, good faith estimate 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

Judy Decker SPR17/1004 Page 2 July 31, 2017 must be provided. G. L. c. 66, § lO(b )(viii); see also 950 C.M.R. 32.07(2)(b ). Once fees are paid, the records access officer must provide the responsive records. Purpose of request Please note that the reason for which a requestor seeks access to, or a copy of, a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Magraw's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Magraw may wish to consider another means of seeking to obtain any existing responsive records. The Department's July Jl" response In the Department's July 14th response, the Department indicated its intent to withhold the records pursuant to Exemption (a) ofthe Public Records Law. You indicate that "[t]he requested records you seek are exempt ... from public records disclosure by ... M. G. L. c. 6, § 167, '[C]riminal [O]ffender [R]ecords [I]nformation ... "'and as a result "shall only be disseminated to: criminal justice agencies ... '' 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

Judy Decker SPR17/1004 Page 3 July 31, 2017 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). The Department has cited the Criminal Offender Records Information Act as applicable to withhold the records pursuant to Exemption (a). Criminal Offender Record Information (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. The Department merely uses a checklist to indicate that the information Mr. Magraw requested is exempt under the CORI statute but it does not explain how the responsive record constitutes CORI as described above and how certain portions cannot be redacted without disclosing any personal information. The Department must explain why any non-exempt, segregable portions ofthe responsive records cannot be disclosed. See G. L. c. 66, § 10 (a). Under the Public Records Law, a custodian of a record shall not only cite an exemption but must explain why the exemption applies to a withheld or redacted portion of the responsive record. Consequently, I find that the Department has not met its burden in explaining with specificity how the responsive record may be withheld under M. G. L. c. 6, § 167 as it operates through Exemption (a) of the Public Records Law. See Flatley, 419 Mass. at 511. I understand a Public Records Division staff attorney contacted you about this matter. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Magraw with a supplemental response 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. Mr. Magraw may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1).

Judy Decker SPR17/1004 Page 4 July 31, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: David Magraw