Andrew P. Cowan v. Boston, City of - Police Department (SPR 20171762)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2018 SPRl 7/1762 Martha DeMaio Director, Public Information City of Boston - Police Department One Schroeder Plaza Boston, MA 02120 Dear Ms. DeMaio: I have received the petition of Andrew Cowan, Esq. appealing the response of the City of Boston 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, on December 14, 2018, Attorney Cowan requested "all reports and log entries relating to an arrest that occurred yesterday around 10 AM at 25 Bay State Rd." The Department provided a response on December 26, 2017, in which it denied access to responsive records pursuant to the Criminal Offender Record Information (CORI) statute as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department's response, Attorney Cowan petitioned this office and this appeal, SPRl 7/1762, was opened as a result. 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. 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. 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

Martha DeMaio SPRl 7/1762 Page 2 January 8, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's December 26th response In its December 26th response, the Department indicated that "[y] our request for records is denied as the records consist of [CORI] regarding a specifically identified person known to you; therefore the records are completely exempt from disclosure." The Department cited the CORI statute, G. L. c. 6, § 167, and quoted page 13 of A Guide to the Public Records Law which states, in an answer to a request for "a copy of an arrest report," that "[a] record that is recorded as a result of the initiation of criminal proceedings or other consequent proceeding may be withheld under the C.O.R.I. statute." The Departmentindicated that because the identity of the individual is known to Attorney Cowan, "[i]t is therefore impossible to redact the records in a manner that would omit CORI ..." Subsequent to the opening of this appeal, I learned that on January 3, 2018, the Department provided Attorney Cowan with a supplemental response which included responsive records pertaining to this request and that there are no other responsive records in existence. Conclusion Accordingly, whereas this appeal was opened because of the Department's failure to provide responsive records, I will now consider this administrative appeal closed. Attorney Cowan may appeal the substantive nature of the Department's response within ninety calendar days. See 950 C.M.R. 32.08(1). Sincerely, ~ u r ~ Supervisor of Records cc: Andrew Cowan, Esq.