Michael W. Lodge, Sr. v. Boston, City of - Public Records (SPR 20171242)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 22, 2017 SPR17/1242 Shawn A. Williams, Esq. Director of Public Records City of Boston 1 City Hall Plaza, Room 615 Boston, MA 02201 Dear Attorney Williams: I have received the petition of Michael Lodge appealing the response of the City of c. Boston (City) to his request for public records. G. L. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Lodge requested various crime scene photos, 35mm negatives of crime scene photos, a 911 tape and related documents, a copy of a palm print, informant and witness statements, and 35 mm negatives of an identified individual. Previous appeal This request was the subject of a previous appeal based on a nomesponse. I closed the appeal with the proviso that the City provide Mr. Lodge with.a response. See SPR17/809 Determination of the Supervisor of Records (June 21, 2017). The City provided Mr. Lodge with a response dated August 28, 2017. Unsatisfied with the City's response, which notes the intention to withhold the requested records under Exemptions (a) and (f), Mr. Lodge petitioned this office and this appeal was opened as a result. G. L. c. 4, §7 (26)(a), (f). 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. 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 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

Shawn Williams, Esq. SPR17/1242 Page2 September 22, 2017 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, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity ofr equester 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. Lodge'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. Lodge may wish to consider another means of seeking to obtain any existing responsive records. The City's June 2fl" response In the City's June 28th response, it indicated its intent to withhold the records pursuant to Exemption (a) and Exemption (f) of the Public Records Law. G. L. c. 4, §7 (26)(a), (f). The City indicated that "[t]he records [Mr. Lodge seeks] consist of criminal case records containing information that specifically identifies the defendant, victim and witnesses. The identity of all these persons is known to [Mr. Lodge], as [Mr. Lodge was] the defendant in the matter. As such, the records consist of information that is exempt both by the CORI statute as well as by Exemption (f) ofthe Public Records Law." See G. L. c. 6, § 167. 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

Shawn Williams, Esq. SPR17/1242 Page 3 September 22, 2017 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 ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court; 372 Mass. 539, 545-46 (1977). The City has cited the Criminal Offender Record Information (CORI) Act as applicable to withhold the records pursuant to Exemption (a). 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 Intelligence information, which is not CORI and therefore not statutorily exempt from disclosure, is defined as: [R]ecords and data compiled by a criminal justice agency for the purpose of criminal investigation, including reports of informants, investigators or other persons, or from any type of surveillance associated with an identifiable individual. Intelligence information shall also include records and data compiled by a criminal justice agency for the purpose of investigating a substantial threat of harm to an individual, or to the order or security of a correctional facility G. L. c. 6, § 167. The City explains that the responsive records "are associated with a criminal homicide investigation in which [Mr. Lodge was] the defendant." Further, the City indicates the records "are CORI, as the records [consist] of criminal offender record information regarding a specific person, and the identity of that person is known by you because you are the subject of the record." Further, the City asserts, "[i]t is therefore impossible to redact the records in a manner that would omit CORI as the identity ofthe subject is known to [Mr. Lodge]." It is unclear what responsive records the City possesses and how each of those records constitutes CORI. See G. L. c. 6, § 167. The City merely states the responsive records are CORI to indicate that the information Mr. Lodge requested is exempt under the CORI statute, but it does not identify what responsive records the City possesses, how the responsive record

Shawn Williams, Esq. SPR1711242 Page4 September 22, 2017 · constitutes CORI as described above and why certain portions cannot be redacted without disclosing any personal information. The City must identify what records it has in its possession that are responsive to Mr. Lodge's request and explain why any non-exempt, segregable portions ofthe responsive records cannot be disclosed. See G. L. c. 66, § 10 (a). Exemption (f) 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 ofBoston, 378 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. The City states that "[t]he records contain witness information that cannot be redacted to protect witness identity" due to Mr. Lodge's status as the defendant in the related matter. I find the City has met its burden to withhold voluntary witness statements made by individuals known to Mr. Lodge. However, it is unclear if the City possesses any statements made by witnesses not known to Mr. Lodge. Additionally, it is uncertain if the City possesses any records responsive to Mr. Lodge's request for informant statements and why those records cannot be redacted and the nonexempt portions provided to Mr. Lodge. Therefore, it is unclear why the City must withhold witness statements by individuals not known to Mr. Lodge and informant statements in their entirety. Reinstein v. Police Cornrn'r of Boston, 3 78 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The City must identify what records it has .in its possession that are responsive to Mr. Lodge's request and explain why any non-exempt, segregable portions of the responsive records cannot be disclosed. See G. L. c. 66, § 10 (a).

Shawn Williams, Esq. SPR17/1242 Page 5 September 22, 2017 Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the City intends to provide Mr. Lodge with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the City provides said 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. Lodge may appeal the substantive nature of the City's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Michael Lodge