Todd Wallack v. Department of State Police - Legal Office (SPR 20181059)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 1, 2018 SPRlS/1059 Dan Brunelli, Esq. Staff Counsel Massachusetts State Police 470 Worcester Rd Framingham, MA 01702 Dear Attorney Brunelli, r have received the petition of Todd Wallack 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, Mr. Wallack requested "copies of any incident reports that match the following criteria: our * Liquor in Woburn on December 8, 2017 with no arrest * our Liquor in Boston on March 5, 2017 with no arrest * our Drugs in Andover on May 3, 2017 with no arrest * our Liquor in Fairhaven on June 25, 2017 with no arrest * Assault w/ dangerous weapon (motor vehicle) in New Bedford on September 12, 201 7 with no arrest * Assault w/ dangerous weapon in Dartmouth on August 8, 2017 with no arrest * Assault w/ dangerous weapon in Dartmouth on August 20, 2017 with no arrest * Assault w/ dangerous weapon in Boston on January 18, 2017 with no arrest * A&B on Police Officer in Boston on November 13, 2017 with no arrest * leaving scene of property damage with a crash in Boston on June 30, 2017 with no arrest." "r Mr. Wallack also noted have no objections if you redact the names of victims and suspects (as well as their personally identifying information) from the reports." The Department responded on July 18, 2018 by denying access to responsive records. 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 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. SPRlS/1059 Page 2 August 1, 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, § 1O (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 ot redacted portion of the responsive record. Current appeal The Department cites several statutes as they operate through Exemption (a) and also refers to various other exemptions to the Public Records Law. Mr. Wallack objects to the Department's claim under the Criminal Offender Records Information (CORI) Act. Exemption (a) The Department asserts that responsive records are specifically exempt from disclosure under the CORI Act as it operates through Exemption (a). See G. L. c. 6, §§ 167-178B. The Department also references G. L. c. 94C, § 44; G. L. c. 41, § 98F; G. L. c. 276, § 100; and G. L. c. 276, § IOOL in support of its position that responsive records are exempt from disclosure by necessary implication. Exemption (a), the statutory exemption, permits the withholding ofrecords 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

Daniel Brunelli, Esq. SPR18/1059 Page 3 August 1, 2018 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. 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 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, § 167 (emphasis added). In its July 18th response the Department references a recent Superior Court decision regarding CORI, which you note is currently on appeal. 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). You also indicate the Department "has carefully reviewed the definition of CORI as amended by chapter 69 of the Acts of 2018, as well as other provisions of this new law that inform the application of the Public Records law to your request." The Department refers to Commonwealth v. Pon, 469 Mass. 296, 307 (2014) and certain provisions of the new law that you claim "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.'" With respect to the responsive records, the Department asserts "[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

Daniel Brunelli, Esq. SPR18/1059 Page4 August 1, 2018 criminal charge [or] an arrest."' The Department also asserts the records are exempt from disclosure by necessary implication and cites G. L. c. 41, § 98F; G. L. c. 6, § 167(m)(l); G. L. c. 94C, § 44; G. L. C. 6, § 172D; G. L. C. 6, § 172F; G. L. C. 22C, §§ 32-35; G. L. C. 276, § 100; 803 C.M.R. 7.02; and 28 C.F.R. 20.3. Despite the Department's response, it is unclear how all of the withheld records fall under the CORI Act; specifically, it is unclear how these incident reports are "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. With respect to its claim about the above statutes applying by necessary implication, it is not clear which responsive records, if any, the Department possesses; therefore, it has not met its burden to show how these statutes and/or regulations apply. G. L. c. 66, § 1O (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 ... "). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L, c. 66, § lO(a) Other exemptions The Department also asserts "[v]arious other exemptions, including but not limited 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." As described above, since it is not clear which responsive records the Department possesses, it has not met its burden to withhold them under these additional exemptions referenced. See G. L. c. 66, § 1O (b )(iv). Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the Department is ordered to provide Mr. Wallack with responsive records, provided in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Sincerely, ~r~ Supervisor of Records cc: Todd Wallack