Shannon Gallagher v. West Bridgewater, Town of - Police Department (SPR 20171482)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 30, 2017 SPR17/1482 Victor R. Flaherty, Jr. Chief of Police Town of West Bridgewater-Police Department 90 West Center Street West Bridgewater, MA 02379 Dear Chief Flaherty: I have received the petition of Shannon Gallagher of The Enterprise appealing the response of the Town of Bridgewater 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, Ms. Gallagher requested a copy of various records related to a motor vehicle crash report (17 -166-AC). The responsive records were the subject of two prior appeals. See SPR17/ 813; SPR17/1100 Determinations ofthe Supervisor ofRecords (June 29, 2017; August 28, 2017). In my August 28th determination, I found that the Department must provide a response to specifically explain the Department's withholding of the report. The Department providedMs. Gallagher with a copy of the repmi; however, it redacted a sentence in the narrative section regarding the operator of the vehicle pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); see also G. L. c. 6, § 167. To date, the Department continues to claim that CORI applies to withhold the sentence in the narrative section of the report. Ms. Gallagher appealed the Department's CORI claim, and the current appeal was opened. 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, § lO(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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

Chief Victor R. Flaherty, Jr. SPR1711482 Page 2 October 30, 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) In its September 6th response, the Depmiment indicates its intent to continue to withhold information in the motor vehicle crash report regarding the operator of the vehicle pursuant to Exemption (a) of the Public Records Law. You indicate that "[t]his redaction prevents the recipient to know the charges being lodged against the individual named in the court complaint. The involved charges were redacted due to a complaint being filed in Brockton District Court." Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). The Department has cited the CORI Act as applicable to withhold the information on the charges lodged against the operator of the motor vehicle as 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. Your September response states that the Department subsequently petitioned a court to obtain a summons to take the suspect of the criminal act that transpired to cause the motor vehicle crash into custody. It is my understanding that the Department had no legal authority to take the suspect into custody at the time of the crash; thus, a court summons was obtained.

Chief Victor R. Flaherty, Jr. SPR17/1482 Page 3 October 30, 2017 Therefore, it is unclear how the crash report, prepared prior to the arrest of the operator, may be considered "a record recorded as the result of the initiation of criminal proceedings." I find that the Department has not demonstrated that the cited exemption applies to withhold the redacted content in the report's narrative section. See Reinstein v. Police Comm'r of Boston, 3 78 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Conclusion Accordingly, the Department is ordered to provide the report 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(a),sec.state.ma.us. In camera inspection In the alternative, in order to facilitate a determination as to the applicability of the exemption claim made by the Department, the Department is hereby ordered to provide this office an un-redacted copy of the responsive motor vehicle report for in camera inspection without delay. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. The authority to require the submission of records for an in camera inspection emanates from the Code ofMassachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community.

Chief Victor R. Flaherty, Jr. SPR17/1482 Page 4 October 30,2017 The Department may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive report. Please be advised that, unlike the materials provided for in camera review, any such additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, 1lJJwA~ Rebecca S. Murray Supervisor of Records cc: Shannon Gallagher