Todd Wallack v. Hull, Town of - Law Department (SPR 20180512)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray St~pewisoro f Records May 1,2018 SPRl81512 James B. Lampke, Esq. Town Counsel - Town of Hull 115 North Street, Suite 3 Hingham, MA 02043 Dear Attorney Lampke, I have received the petition of Todd Wallack of the Boston Globe appealing the response of the Hull Police Department (Town) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested "[alny applications for criminal complaints created by the police department from January 2017 through September 2017." Mr. Wallack indicates "[ilf possible, 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 "[ilf you 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 4,20 17) (CORI decision). The Town provided redacted responsive incident reports on April 16,201 8. The redactions were made under Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, 5 7(26)(a),(c); G.L. c.41, 5 98F; G.L. c. 6, 5 167; G.L. c.214, 5 1B. Related appeal It should be noted that this request is similar to the request at issue in SPR18/257. See SPR181257 Determination of the Supervisor of Records (March 16,201 8 ; April 24, 20 18 ). The determinations in SPR18/257 dealt with certain redactions made on applications for criminal complaints. On April 24,201 8 I ordered the Town to provide this office an unredacted copy of the responsive records for in camera inspection without delay. One Ashburton Place, Room 1719 , Boston, Massachusetts 021 08 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

James B. Lampke, Esq. Page 2 May 1,2018 Current appeal In the Town's April 16'~re sponse you explain it is providing "5 incident reports related to certain applications for criminal complaints where the complaints did not result in the issuance of criminal process. The other 2 incident reports involve juveniles and are not being supplied." The Town cites the Criminal Offender Records Information (CORI) Act, G. L. c. 214, 5 lB, G. L, c. 41, 5 98F, and Exemption (c) in support of the redactions. The Town indicates it has "redacted the names of the persons who were the subject of the incident report where the Court did not issue criminal process. Also redacted is information of an identifying nature of victims and witnesses." It should be noted that as part of the criminal justice reform bill recently signed by Governor Baker on April 13,2018 , there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 201 8. Given that it was signed with an emergency preamble, this is the current definition of CORI: "Criminal offender record information", records and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, 5 167 (emphasis added). It is unclear how the redacted material is exempt under the CON Act; specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In light this change to the definition of CORI, the Town may provide supplemental information addressing this issue.

James B. Lampke, Esq. Page 3 May 1,2018 In camera review The issues raised in the Town's April 16'~re sponse are similar to those discussed in the April 24th determination in SPR181257 referenced above in which I found that an in camera review of the responsive records would facilitate a determination as to whether the Town properly redacted records. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, 5 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 (198 1) (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. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. 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. The Town must provide this office an unredacted copy of the responsive records for in camera inspection without delay. The Town may provide this office with an explanation of its position regarding the applicability of an exemption to the responsive records. 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, Rebecca S. Murray Supervisor of Records cc: Todd Wallack