Jeffrey J. Pyle, Esq. v. Massachusetts State Police (SPR 20180822)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 20, 2018 SPR18/822 Michael Halpin, Esq. Office of the Chief Legal Counsel Department of State Police 470 Worcester Road Framingham, MA O1 702 Dear Attorney Halpin: I have received the petition of Jeffrey Pyle, Esq. on behalf of Allison Jarmanning 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, on December 13, 2017, Ms. Jarmanning requested copies of "initial incident or arrest reports for any guns found at security checkpoints at Logan Airport in 2016 and 2017." Previous appeals This request was the subject of previous appeals. See SPR18/090 Determination of the Supervisor of Records (January 24, 2018); SPRl 8/182 Determination of the Supervisor of Records (February 26, 2018). I closed SPRl 8/182 by ordering the Department to provide this office with a representative sample of the responsive records for in camera review without delay, in order to make a determination regarding the Department's exemption claims and also to shed light on the reasonableness of its fee estimate. Following the February 26th determination, the Department subsequently provided a response on April 27, 2018, denying access to responsive records pursuant to Exemptions ( a), (c), and (t) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (t). Unsatisfied with the Department's response, Attorney Pyle petitioned this office and this appeal, SPRl 8/822, 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 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

Michael Halpin, Esq. SPR18/822 Page 2 June 20, 2018 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. 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 April 2111 response In its April 27, 2018 response, the Department indicates that a previously referenced Superior Court decision, Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, is currently on appeal. The Department notes that the Superior Court judge wrote, "The key dispute involves the [following] text: 'Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto,"' and indicates that" ... [s]ection 3 of chapter 69 of the Acts of 2018 struck this text from the definition of CORI." As a result, the Department contends that because the updated definition of CORI took effect on April 13, 2018, " ... the Superior Court's decision is a declaration of what the law used to mean, rather than what the law means today." The Department asserts that the following exemptions are applicable to withhold responsive records from disclosure. Exemption (a) The Department Claims it withheld responsive records under the following statutes: G. L. C. 6, §§ 167-178; G. L. C. 94C, § 44; G. L. C. 41, § 98F; G. L. C. 6, § 172D; G. L. C. 22C, §§ 32- 35; G. L. c. 276, § 100; G. L. c. 276, § lOOL and regulations 803 C.M.R. 7.02 and 28 C.F.R. 20.3, as they operate through Exemption (a) of the Public Records Law. 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

Michael Halpin, Esq. SPR18/822 Page 3 June 20, 2018 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. Under its Exemption (a) claim, the Department indicates that after reviewing the updated definition of CORI, as well as other provisions of this new law, "[t]hese provisions affirm the long-held legislative concern 'that gainful employment is crucial to preventing recidivism, and that criminal records have a deleterious effect on access to employment.' Commonwealth v. Pon, 469 Mass. 296, 307 (2014); see, e.g.:., section 5 (' [c]ategories of [arrest] data which constitute personally identifiable information shall not be posted or made available to the public and shall not be public records as defined in section 7 of chapter 4'); section 186 (shortening the period for sealing of misdemeanors); section 187 (shortening the period for sealing of felonies); section 195 (establishing procedures for expunging records, including the contents of public police logs)." The Department asserts that "[b]ased on this review, [it] has concluded that the police reports [Ms. Jarmanning has] requested are not public records, pursuant to M.G.L. c. 4, §7 cl. (26)(a) because they are material[s] specifically," or by necessary implication, exempt from disclosure by the above referenced statutes and regulations. The Department explains that the requested police reports "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 asserts that even if the reports are not subject to the express protections under CORI, they are otherwise entirely exempt from disclosure by necessary implication." See, e.g.:., M.G.L. c. 41, §98F & c. 6, §167(m)(l) (excluding 'police daily logs ... [and] other similar records compiled Chronologically' from CORI); M.G.L. c. 94C, §44 (police access to arrest records otherwise subject to sealing); M.G.L. c.6, § 172D (identifying 'arrest, conviction, incarceration and rehabilitation Information' as CORI); M.G.L. c. 6, § 172F ( allowing the department of early education and care access to 'arrest data' and 'juvenile arrest ... data' 'notwithstanding section 172'); M.G.L. c. 22C, §§32-35 (ensuring that hate crime 'incident reports' receive 'all confidentiality requirements otherwise imposed by law'); M.G.L. c. 276, §100 (authorizing dissemination of information concerning persons on probation,

Michael Halpin, Esq. SPR18/822 Page4 June 20, 2018 including but not limited to police reports, to probation officials, but unambiguously declaring that the same 'shall not be regarded as public records and shall not be open to public inspection[;]' and 803 CMR 7.02 and 28 CFR 20.3 (protecting criminal history record information, including 'identifiable descriptions and notations of arrests ... or other formal criminal charges'). The Department has cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as well as several other statutes and regulations as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI is defined as: [Rlecords 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 ( emphasis added). It is unclear how the withheld records are exempt under the CORI Act; specifically, it is uncertain how all of these records contain "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. I also find the Department has not met its burden to withhold responsive records in their entirety under the other statutes cited in its April 2ih response. 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Other Exemptions The Department's response also cites other exemptions to support its position. The Department claims that Exemptions (c ) and (f), either independently or in combination with Exemption (a) precludes the disclosure "of all or so much content of any given police report that the effort and results of any such endeavor would be futile."

Michael Halpin, Esq. SPR18/822 Page 5 June 20, 2018 Exemption (c) The Department indicates it withheld responsive records pursuant to Exemption ( c) of the Public Records Law. 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). Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. 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 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. Under its Exemption (c ) claim, the Department asserts that "individuals (those accused, those victimized and those involved in reported crimes) invariably maintain significant privacy interests in the dissemination of any given police report. Often, the 'interest of the individual in

Michael Halpin, Esq. SPR18/822 Page 6 June 20, 2018 privacy weighs more heavily in the balance ... [where] he [is or] was not convicted.' New Bedford Standard-Times Publishing Co. v. Clerk of the Third District Court of Bristol, 3 77 Mass. 404,414-415 (1979) ...." The Department contends that only "'[w]here the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, [m ust] the private interest in preventing disclosure ... yield to the public interest.' Id. ..." However, the Department's response does not address the factors articulated in PETA. As a result, the Department has not established whether there is a privacy interest that is not substantially outweighed by a public interest. See id. at 291-92. · Exemption (I) The Department also claims it withheld responsive records pursuant to Exemption (f) of the Public Records Law. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(£). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be · withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein, 378 Mass. at 290 n.18. Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. Citing the Bougas decision, the Department contends that because police reports contain investigatory material, disclosure would not be in the public interest. The Department explains, that police reports contain "'statements taken from witnesses, additional information obtained from other sources, some confidential, and leads and tips to be pursued.' As such, they often contain 'investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials[,] the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. ... "' Bougas, 371 Mass. at 62.

Michael Halpin, Esq. SPR18/822 Page 7 June 20, 2018 However, the Department did not demonstrate that the responsive records pertain to ongoing investigations, contain confidential investigative techniques, or how disclosure of all of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Further, although the Department references witness statements, I find it has not met its burden to withhold responsive records in their entirety under Exemption (f). See G. L. c. 66, § lO(a). Burden ofs pecificity; duty to segregate Pursuant to the Public Records Law, the burden shall be upon the custodian to prove with specificity how an exemption applies to withhold 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. Despite the Department's claims in its April 27, 2018 response, I find the Department has not met its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure under Exemptions (a), (c), and (f) of the Public Records Law. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). Order Given that the Department has not met its burden in demonstrating that the responsive records may be withheld in their entirety, the Department is ordered to review the emails, redact where necessary, and provide the emails to Attorney Pyle in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. A copy of any such response that accompanies the records to explain the redactions 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. Murr~ Supervisor of Records cc: Jeffrey Pyle, Esq.