John D. Rousseau v. Massachusetts State Police (SPR 20180825)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 15,2018 SPRl81825 Alycia DeAngelis, Esq. Staff Counsel Massachusetts State Police 470 Worcester Rd Framingham, MA 0 1702 Dear Attorney DeAngelis: I have received the petition of John Rousseau appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rousseau requested records relating to named individuals in the custody of the Commonwealth Fusion Center (Fusion Center). Taking issue with the exemptions claimed by the Department, Mr. Rousseau appealed the Department's May 10,2018 supplemental response to his February 26,2018 public records request. 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, 5 IOA(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, 5 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, 5 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 41 9 Mass. 507, 5 11 (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. G. L. c. 66, 5 lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, 5 lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. One Ashburton Place, Room 1719 , Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (6 17) 727-5914 sec.state.ma.us/pre = pre@sec.state.ma.us

Alycia DeAngelis, Esq. Page 2 June 15,2018 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 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. 15 1, 54 (19 79); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539,545-46 (1977). The Department cites the Criminal Offender Record Information (CORI) Act for the reasoning behind withholding requested public records by Mr. Rousseau. The Department oth explained to Mr. Rousseau in the May 1 response that the documents fall under the CORI Act when they are "records and data in any communicable form compiled by a Massachusetts criminal justice agency [in this case, the Fusion Center,] which concern an identifiable individual and relate to the nature or disposition of a criminal charge [or] an arrest." The Department asserts that Mr. Rousseau requested documents that identify a certain individual which would be protected as CORI. @G. L. c. 4, 5 7 (26)(a). The Department has cited the CORI Act, G. L, c. 6, 5 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, 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

Alycia DeAngelis, Esq. Page 3 June 15,2018 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. The Department thus has not satisfied the requirements under Exemption (a) in its May lothr esponse. Exemption (c) The Department claims records may be withheld under the second clause of 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. 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 A~ricR. es., 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 Id. disputes and reputation. 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 Id. in a law-abiding and efficient manner. at 292.

Alycia DeAngelis, Esq. Page 4 June 15,2018 The Department cited Exemption (c) when referring to the withholding of records for "those victimized and those involved in reporting crimes" who maintain significant privacy interests in the dissemination of any given police report. The Department explained that the identities of those who come forward to report criminal activity should remain exempt from disclosure. 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. The Department thus has not satisfied the requirements under Exemption (c) in its May lothr esponse. Exemption @ ~xern~tio(fn) p ermits 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 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 v. Police Cornrn'r of Boston, 378 Mass. 28 1,290 n. 18 (19 79). 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. The Department explains in the May lothr esponse to Mr. Rousseau that the Department conducted an investigation concerning the criminal activities of Mr. Rousseau and another individual. The investigation was conducted with various municipal police departments and agencies spanning a period of several years. This investigation resulted in intelligence sharing between law enforcement officials at "tactical and strategic levels." The Department cited Exemption (f) due to the investigatory techniques to collect information which needed to be performed out of public view for the purpose of apprehending criminal actors. However, the Department does not identify the records it has in its possession that relate to confidential investigative techniques. Also, the Department did not demonstrate how the 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

Alycia DeAngelis, Esq. Page 5 June 15,2018 withhold records under Exemption (0. I find the Department has not met its burden to withhold responsive records in their entirety under Exemption (0. See G. L. c. 66, 5 10(a). Exemption (n) Exemption (n) permits the withholding of records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric.Res., 477 Mass. 280,289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the Id. proposition that disclosure of the record is 'likely to jeopardize public safety."' at 289-90. The PETA decision further provides that "[b]ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's Id. determination given the context of the particular case." The Department stated that releasing the reports and information detailing Mr. Rousseau's criminal methods and tactics "en masse into the public sphere akin to providing a domestic terrorist with blue prints to the White House." The Department explains that Mr. Rousseau's past criminal conduct would require security measures to be taken to ensure public safety of "essential infrastructure located within the Commonwealth, including railways and other properties maintain by the state for public use." However, I find the Department has not met its burden to demonstrate which responsive records are being withheld under Exemption (n) and how they "resemble the records listed as

Alycia DeAngelis, Esq. SPR181825 Page 6 June 15,2018 examples in the statute" as required by PETA. Further, the Department has not provided "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the records is "likely to jeopardize public safety or cyber security" as required by Exemption (n). The Department thus has not satisfied the requirements under Exemption (n) in its May loth response. Conclusion 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, 5 1O (a)(ii), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, 5 lO(b)(iii). It is unclear what records the Department is withholding from Mr. Rousseau concerning his request or if the records are in the Department's possession. G. L. c. 66, 5 lO(b)(ii), (b)(iii). The Department must identify the record withheld under each exemption and explain why the exemption applies in the manner described above. See G. L. c. 66, 5 lO(b)(iv) (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); See Reinstein, 378 Mass. at 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, 5 lO(a). Order Accordingly, the Department is ordered to review the requests made by Mr. Rousseau and provide a written response to Mr. Rousseau, made in accordance with the Public Records Law, its Access Regulations and this order 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: John Rousseau