Todd Wallack v. Everett, City of - Police Department (SPR 20180232)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 8, 2018 SPRlS/232 Captain Paul Hamilton Records Access Officer Everett Police Department 45 Elm Street Everett, MA 02149 Dear Captain Hamilton, I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Everett 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). The Department provided an initial response dated February 22, 2018, denying Mr. Wallack's request for records under the Criminal Offender Records Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G.L. c. 6, § 167. The Department also provided a supplemental response on February 27, 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, § 10A(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

Captain Paul Hamilton SPR18/232 Page 2 March 8, 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. 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, § 167. 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). 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 2ih response, the Department asserts that "[s]ince criminal proceedings have been initiated, the record is exempt by statute. A record that is recorded as a result of the initial criminal proceedings or other consequent proceedings may be withheld under the C.O.R.I. statute. (803 C.M.R. 7)." You further indicate that the Department of Criminal Justice Information Services "interprets the 'initiation of criminal proceedings' to be 'the point when a criminal investigation is sufficiently complete that the investigating officers take actions towards

Captain Paul Hamilton SPR18/232 Page 3 March 8, 2018 bringing a specific suspect to court.' Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. (MGL c6 s 172). Since this record contains Criminal Offender Record Information (C.O.R.I) dissemination is limited to specific groups." In his February 22nd appeal, Mr. Wallack objects to the Department's response regarding CORI and also references its social media feed. Mr. Wallack also notes "I am only requesting records created by the City of Everett Police Department- not records from DCJIS." The Department's February 2ih supplemental response reiterates its position regarding the applicability of the CORI Act to responsive records. You also address the Department's social media account and you contend that criminal justice agencies "may disseminate CORI as otherwise authorized by law in the interest of public safety." 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 ofRecords (October 10, 2006); SPRl0/152 Determination ofthe Supervisor of Records (August 27, 201 0). Therefore, 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, § lO(a). 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. Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack