Jen Abelson v. Massachusetts State Police (SPR 20180596)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 14, 2018 SPR18/596 Daniel Brunelli, Esq. Staff Counsel Department of State Police Office of Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Jenn Abelson of the Boston Globe appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Ms. Abelson requested a copy of narratives regarding fifteen (15) identified persons. The Department's response indicates that the request is denied, in its entirety, pursuant to the Criminal Offender Record Information (CORI) Act, and various other exemptions, G. L. c. 4, § 7(26)(a)-(u). As a result, Ms. Abelson petitioned the Supervisor of Records (Supervisor), indicating that the Department declined to provide a number of incident reports and applications for criminal complaints. 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) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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 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

Daniel Brunelli, Esq. SPR18/596 Page 2 May 14, 2018 burden of establishing the applicability of an exemption). The Department's response The Department's response indicates that the arrest reports are being withheld, in their entirety, pursuant to the CORI Act as it operates through Exemption (a). The response also states, "[t]he public availability of arrest reports is the subject of on-going litigation in the case of Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, and the decision of this Superior Court case is presently on appeal." · Further, the Department's response states, "[v]arious other exemptions, including but not limited to the investigatory and privacy exemptions, independent from and/or in combination with Exemption (a), similarly preclude dissemination of all or so much content of any given police report that the effort and results of any such endeavor would be futile." (Citing G. L. c. 4, § 7(26)(a)-(u)). Exemption (a) Exemption (a), known as 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.

Daniel Brunelli, Esq. SPR18/596 Page 3 May 14, 2018 CORI Act The Department indicated that it is withholding all the responsive incident reports/arrest reports and applications for criminal complaints, in their entirety, pursuant to the CORI Act, citing G. L. c. 6, §§ 167-178B. The response specifically states, "[t]he police reports you requested are CORI and not a public record because they are records and data in any communicable form compiled by a Massachusetts criminal justice agency [in this case, the State Police] which concern an identifiable individual and relate to the nature or disposition of a criminal charge or an arrest." The Department also indicates that even if the reports are not subject to the express CORI protections, police reports are by necessary implication, entirely exempt from public disclosure. The Department indicates that "arrest records otherwise subject to sealing; arrest, conviction, incarceration and rehabilitation information as CORI; Department of Early Education and Care arrest data and juvenile data; hate crime incident reports; and probation information." 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 2018. Given that the legislation 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, § 167 ( emphasis added). It is unclear how all of the incident reports and applications for criminal complaints are exempt under the CORI Act; specifically, it is unclear how all of the records pertain to "information recorded in criminal proceedings that were not dismissed before arraignment," as

Daniel Brunelli, Esq. SPR18/596 Page4 May 14, 2018 described above. In light of this change to the definition of CORI, the Department should provide any police reports and applications for criminal complaints where the arrest or charges were dismissed before arraignment. Other exemptions - (a)-(u) The Department also contends that various other exemptions, including the investigatory and privacy exemptions either independent from, or in combination with Exemption (a), "[p] reclude dissemination of all or so much content of any given police report that the effort and results of any such endeavor would be futile." The Department indicates that records would be so heavily redacted, due to information such as police officers' observations of particular incidents; witness identification and witness statements that may contain leads and tips to be pursued; and individual privacy interests of both victims and the accused, that the records would be rendered functionally useless. However, the Department's response speaks to generalities, without any concrete information contained in the particular records requested by Ms. Abelson, that a determination that the records would be rendered functionally useless at this juncture is premature. The Department's response merely cites G. L. c. 4, § 7(26)(a)-(u), and a few court decisions concerning certain exemptions in the Public Records Law that may be applicable to segregate information or withhold records. Therefore, the Department has not met its burden of demonstrating that any of the exemptions specifically apply to allow the Department to withhold the records in their entirety. Specificity in responding; claiming exemptions I find the Department has not met its burden of demonstrating how the responsive reports and applications for criminal complaints, in their entirety, are exempt from disclosure under the amended definition of the CORI Act as it operates through Exemption (a), or any other exemption in the Public Records Law. See 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). Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity how an exemption applies to withhold all the responsive records. See G. L. c. 66, § lO(b)(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 1 O(a). Furthermore, it is unclear whether the Department has in its possession, or has withheld, the records or categories ofrecords responsive to Ms. Abelson's request. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Consequently, the Department must provide Ms. Abelson with a response identifying any records, categories of records or portions of records it is withholding.

Daniel Brunelli, Esq. SPR18/596 Page 5 May 14, 2018 Conclusion Accordingly, the Department is hereby ordered to provide Ms. Abelson with the requested records, redacted where necessary, in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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. The Department may request reconsideration of this determination within ten business days. Sincerely, ~~ Supervisor of Records cc: Jenn Abelson