Todd Wallack v. Belmont Police Department (SPR 20180202)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records. Division Rebecca S. Murray Supervisor ofR ecords March 1, 2018 SPRlS/202 Benjamin Mailhot Sergeant, Traffic and Records Division Belmont Police Department 460 Concord A venue P.O. Box 130 Belmont, MA 024 78 Dear Sergeant Mailhot, I have received the petition of Todd Wallack ofthe Boston Globe appealing the response ofthe Belmont Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "[a]ny applications for criminal complaints created by the police department from January 2017 through September 2017." Mr. Wallack indicates "[i]fpossible, please only include cases where the applications were denied and a clerk-magistrate or assistant clerk refused to issue a criminal complaint. If that is not possible, then please provide all the applications created during that time period. If the search identifies more than 20 applications, please only provide the first 20 records located." He further notes that "[i]fyou cannot locate copies of the full applications for criminal complaints in each case, please provide the documentation you do have on file for each case (such as the police incident reports)." Mr. Wallack also references a recent Superior Court decision regarding Criminal Offender Record Information (CORI). See Boston Globe Media Partners, LLC v. Dept. of Criminal Justice Info. Servs. et al., Suffolk Sup. No. 15-1404-D (December 4, 2017) (CORI decision). In a response dated February 13, 2018, the Department denied access to responsive records under Exemptions (a) and (c) ofthe Public Records Law. G. L. c. 4, § 7(26)(a), (c). The Department also provided a supplemental response on February 23, 2018. 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 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

Benjamin Mailhot SPR18/202 Page 2 March 1, 2018 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, § 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. The Department's responses The Department claims that it does not possess certain responsive records. In particular, the Department asserts "[t]o the extent that your request relies upon the Belmont Police Department having copies in its files of the same documents that the Cambridge District Court Clerk-Magistrate has in his files at the courthouse (assuming those are public documents), the Belmont Police Department reports that it does not have copies of these documents." You also state that "[t]hough the Belmont Police Department typically keeps a copy of the complaint application it submitted, the Belmont Police Department receives back neither the original application nor any copy of it. The application is retained by the court." In his appeal petition Mr. Wallack notes "I am only seeking the version of the documents in the possession of the Belmont Police." It should be noted that the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10 ( a)(ii). Exemption (a) The Department asserts that responsive records may be withheld in their entirety under the CORI Act as it operates through Exemption (a). G.L. c. 6, §§ 168 to 178. Exemption (a), 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).

Benjamin Mailhot SPR18/202 Page 3 March 1, 2018 This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its February 13th response the Department notes "[s]ince criminal complaint applications fall within the definition of criminal offender record information (CORI), and the Belmont Police Department is a 'criminal justice agency,' the dissemination of criminal complaint applications is controlled by MGL Ch. 6, §§ 168 to 175, and the release ofCORI information not in accordance with those sections is subject to a criminal penalty provided by§ 178 and specific tort liability and exemplary damages pursuant to § 177 ." You further indicate that Mr. Wallack's request "does not fall within the circumstances set forth in§§ 168 through 175 that permit the dissemination of CORI." In a February 23rd supplemental response the Department also addresses the CORI decision and argues that case "dealt with booking photos and incident reports; documents that are not related to the initiation of criminal proceedings, as the court defined that phrase. An application for a criminal complaint, on the other hand, is the document used by the police department to initiate a criminal proceeding. If the clerk-magistrate approves the application, a criminal complaint is issued, and a criminal proceeding has been commenced." In an email dated February 23rd, Mr. Wallack notes that "Mr. Hall asserts that I am only seeking records where a clerk magistrate has found no probable cause. That is not correct. I requested records that did not result in a criminal complaint being issued. According to the court's own data, clerk magistrates routinely decline to issue criminal complaints even after finding there is probable cause to issue a complaint." He also notes that he requested "both incident reports and applications for criminal complaints created by Belmont Police - both of which are created prior to the issuance of a criminal complaint and the formal initiation of criminal proceedings by the courts." I find the Department has not met its burden to withhold responsive records in their entirety under the CORI Act. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 10 ( a). It should be noted that this office has previously found that the initiation of criminal proceedings begins at the signing of the criminal complaint. See SPR06/191 Determination of the Supervisor of Records (October 10, 2006); SPR10/152 Determination ofthe Supervisor of Records (August27, 2010).

Benjamin Mailhot SPR18/202 Page4 March 1, 2018 The Department also cites G. L. c. 214, § 1B in support of its position. However, this statute does not specifically nor by implication exempt any particular records from disclosure; therefore, this statute does not operate by way of Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). Exemption (c) The Department also cites the second clause of Exemption (c) in support of its position to withhold records in their entirety. Exemption (c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, §7 (26)(c). Exemption (c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the. seriousness of any invasion of

Benjamin Mailhot SPR18/202 Page 5 March 1, 2018 privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department cites the "District Court Standards of Judicial Practice" in support of its position that records may be withheld under the second clause of Exemption (c). However, the Department has not met its burden to show how information within the records is not available from other sources, nor how the records constitute intimate details of a highly personal nature. Id. Further, given the public interest in knowing how law enforcement officers conduct their public duties, I find there is a significant public interest in obtaining the requested information. See id. at 291; Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 7-8 (2003). Accordingly, I find the Department has not met its burden to withhold the responsive records in their entirety under Exemption (c). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 1O (a); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979). (the statutory exemptions are narrowly construed and are not blanket in nature). Other redactions and exemption claims The Department also addresses the issue of the Probation Central File (PCF) number and states "[t]his number is created on the occasion of a person's first arraignment in a criminal case and its presence on a complaint application demonstrated that the subject of the complaint has previous been charged with a crime." You explain that releasing this information "would be contrary to the CORI law's concern for the protection of the criminal record of person's charged with crime. If the requested records were released, the PCF numbers would be redacted." Mr. Wallack notes in his appeal petition that he has no objections to the redaction ofthis information. Therefore, I find it is unnecessary to opine on these redactions. The Department further contends that some responsive records are exempt from disclosure under G.L. c. 41, § 98F. The Department also cites G.L. 41, § 97D. Mr. Wallack indicates that the Department "suggests that some of the records are exempt or need to be redacted because they involve accusations of sexual assault or other crimes protected under Chapter 41 Section 98F. I have no objection to Belmont Police making those specific redactions." Accordingly, I find it is unnecessary to opine on these redactions. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack responsive records 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.

Benjamin Mailhot SPR18/202 Page 6 March 1, 2018 Sincerely, ~y~ Supervisor of Records cc: Todd Wallack George A. Hall, Jr., Esq.