Albert A. Correa-Martinez v. Springfield, City of (SPR 20171246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 19, 2017 SPR17/l246 Anthony Wilson, Esq. City Clerk's Office 3 6 Court Street Springfield, MA 01103 Dear Attorney Wilson: I have received the petition of Albert A. Correa-Martinez appealing the response of Springfield 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. Correa-Martinez requested "copies of any and all documents within [the Department's] possession that were generated by [the] department relative to [Mr. Correa-Martinez's] arrest on May 1, 2014." Attorney Anthony Wilson, City Clerk, denied his request, claiming that the responsive record are exempt under Exemption (a) citing the Criminal Offender Record Information (CORI) Statute. 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 v:rithin 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, § 10(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Springfield Police Department SPR17/1246 Page 2 September 19, 2017 Purpose of request; identity of requester Please note that the reason for which a requester 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 requesters. 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. Correa-Martinez'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. Correa-Martinez may wish to consider another means of seeking to obtain any existing responsive records. The Department's August2l11 response In the Department's August 24th response, it indicated its intent to withhold the records pursuant to Exemption (a) of the Public Records Law. The Department indicated that "the requested records are exempt from disclosure as public records pursuant to M.G.L.c. 6, § 7(26)(a) as statutorily exempted pursuant toM.G.L.c. 6 § 167, also known as the 'CORI Statute."' 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).

Springfield Police Department SPR17/1246 Page 3 September 19, 2017 The Department has cited the 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 G. L. c. 6, § 167. 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 Department states the Department of Criminal Justice Information Services (DCJIS) "interprets the 'initiation of criminal proceedings' to be the point when a criminal investigation is sufficiently complete that the investigating officers take actions toward bringing a specific suspect to court." Further, the Department states that records responsive to Mr. Correa Martinez' s request "were made or received as a result of an arrest and criminal proceedings against named individuals." Based on the Department's response it is unclear what responsive records they possess, how the responsive records each constitute CORI as described above and whether any portions of responsive records could be redacted to prevent the disclosure of CORI information. The Department must also explain why any non-exempt, segregable portions of the 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 metits burden in explaining with specificity how the responsive records may be withheld under G. L. c. 6, § 167, as it operates

Springfield Police Department SPR17/1246 Page 4 September 19, 2017 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. Order Accordingly, the Department is hereby ordered to provide Mr. Correa-Martinez 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. Mr. Correa-Martinez may appeal the substantive nature of the Department's response within ninety days. See 950 C.M.R. 32.08(1 ). Sincerely, Rebecca S. Murray Supervisor of Records cc: Albert A. Correa-Martinez