Abdullah R. Muhammad (Frank Clifford) v. Springfield, City of - Office of the City Clerk (SPR 20171345)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 27, 2017 SPR17/1345 Anthony I. Wilson, Esq. City Clerk 36 Court Street Springfield, MA O1 103 Dear Attorney Wilson: I have received the petition of Abdullah Muhammad (Frank Clifford) appealing the response of the City of Springfield (City) to his request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Muhammad requested "any and all information within [Springfield Police Department's] possession" regarding an identified individual and series of events. Attorney Wilson, City Clerk, denied his request, claiming that the responsive records are exempt from disclosure pursuant 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); 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. 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

Anthony I. Wilson, Esq. SPRl 7/1345 Page2 September 27, 2017 Purpose of request; identity of requester 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. Muhammad'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. Muhammad may wish to consider another means of seeking to obtain any existing 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). The City 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

Anthony I. Wilson, Esq. SPRl 7/1345 Page 3 September 27, 2017 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. In the City's September 6th response, it indicated it "must deny [Mr. Muhammad's] request, because it believes that the requested records are exempt from disclosure as public records pursuant to M.G.L.c. 4, § 7(26)(a) as statutorily exempted pursuant to M.G.L.c. 6 § 167, also known as the 'CORI Statute."' However, it is unclear what responsive records the City possesses, how the responsive records each constitute CORJ as described above and whether any portions of responsive records could be redacted to prevent the disclosure of CORI information. The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Additionally, 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. See G. L. c. 66, § lO(a). The City's response does not contain the specificity required in a denial of access to public records. Instead, the City's response merely cites Exemption (a) and the CORI Act without any further explanation as to the exemption's applicability to the requested records. The City is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the City failed to satisfy its burden in responding to this records request. The City is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. The City must also explain why any non-exempt, segregable portions of the responsive records cannot be provided. Order Subsequent to the intervention by a staff member of the Public Records Division, I

Anthony I. Wilson, Esq. SPRI 7/1345 Page4 September 27, 2017 learned that a representative from the City intends to provide Mr. Muhammad 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. Muhammad 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: Abdullah Muhammad (Frank Clifford)