Michael Dreslinski v. Massachusetts State Police (SPR 20181111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 9,20 18 SPR18/1111 Alycia DeAngelis, Esq. Department of State Police 470 Worcester Road Framingham, MA 0 1702 Dear Attorney DeAngelis: I have received the petition of Michael Dreslinski appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, 5 10A; see 950 C.M.R. 32.08(1). Specifically, in a letter dated January 1,201 8, Mr. Dreslinski requested "[all1 records created and received by the Commonwealth Fusion Center, regardless of date, regarding [an identified individual]." In its most recent response dated May 10,2018, the Department denied his request claiming the responsive records are exempt from disclosure pursuant to Exemptions (a), (c), (0 and (n) of the Public Records Law. G. L. c. 4, 5 7(26)(a), (c), (0, (n). 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 10A(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 lO(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 (19 95) (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, 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, Massac-h usetts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Alycia DeAngelis, Esq. Page 2 August 9,201 8 Exemptiovt (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. 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 the first category, the Department indicates that "some of the material [Mr. Dreslinski] requested is exempt under CORI law as amended by chapter 69 of the Acts of 201 8, as well, as other provisions of this new law that inform the application of the Public Records law to [Mr. Dreslinski's] request.. . most of the documentation [Mr. Dreslinski] requested names [an identified individual]. These reports are therefore CORI because they are considered 'records and data in any communicable form complied by a Massacliusetts 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.' Accordingly, some of the records [Mr. Dreslinski] requested are exempt from public disclosure by statute." Under the second category, the Department indicates that "some of the records [Mr. Dreslinski] requested are also exempt from disclosure via necessary implication. See G.L. c. 276, tj 100 (authorizing dissemination of information concerning persons on probation, including but not limited to police reports, to probation officials, but unambiguously declaring that the same are neither considered public records nor are they subject to public inspection'; and 803 CMR 7.02 and 28 CFR 20.3 (protecting criminal history record information, including 'identifiable descriptions and notations of arrest.. .or other formal criminal charges')."

Alycia DeAngelis, Esq. Page 3 August 9,2018 Exemption (c) 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. 427,432-34 (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 Comrn'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 a. 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. The Department indicates that "individuals (those victimized and those involved in reporting crimes) maintain significant privacy interests in the dissemination of any given police report. G.L. c. 4, 57, cl. 25 (c). Often, the 'interest of the individual in 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, 377 Mass. 404,414-415 (1979).

Alycia DeAngelis, Esq. Page 4 August 9,2018 With this in mind, the SJC has made it clear that, in relation to privacy, the identities of those who come forward to report criminal activity remain exempt from disclosure." fl Exemption 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 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 Comm'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 indicates that "[tlhe goal of a fusion center is to facilitate collaboration between two or more agencies who provide resources, expertise and information to one central body with the goal of maximizing the ability to detect, prevent, apprehend and respond to criminal and terrorist activity. This brand of intelligence-led policing is designed to inform the decision making of law enforcement both at the tactical and strategic levels. The Fusion Center, which conducted an investigation concerning the criminal activities of [two identified individuals], compounded information from various municipal police departments and agencies spanning a period of several years. The collection of this information was a formal investigation conducted by the Fusion Center analysts for the purpose of detecting and preventing criminal acts committed by [an identified individual]. As such, the record itself constitutes investigatory techniques necessarily performed out of public view for the purpose of apprehending criminal actors." Exemption (n) Exemption (n) permits the withholding of:

Alycia DeAngelis, Esq. Page 5 August 9,201 8 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 jeopardize 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 Department indicates that "releasing the reports and information detailing [an identified individual's] criminal activities, methods and tactics en masse into the public sphere akin to providing a domestic terrorist with blue prints to the White House. G.L. c. 4, 5 7, cl. 26 (n). The intimate details of [an identified individual's] past conduct implicate security measures taken to ensure the continued safety of essential infrastructure located within the Commonwealth, including railways and other properties maintain by the state for public use. People for the Ehtical Treatment of Animals, Inc. v. Dep't of Agric. Res., 447 Mass. 280 (2017)." Specificity The Public Records Law states that "the burden shall be upon the custodian to prove with specijicity the exemption which applies." G. L. c. 66, 5 lO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 51 1. Despite the Department's explanations as to how the claimed exemptions apply to various types of information, it remains unclear what responsive records the Department possesses. The Department's response does not identify the records or categories of records it possesses that are responsive to Mr. Dreslinski's request. It is additionally unclear how the claimed exemptions specifically apply to each record permitting the Department to withhold the records in their entirety. The Department must provide a response to Mr. Dreslinski that provides additional information identifying the responsive records the Department possesses. G. L. c. 66, 5 lO(b)(iv) (a written response shall "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.. ."); Flatley, 419 Mass. at 51 1 (custodian has the burden of establishing the applicability of an exemption).

Alycia DeAngelis, Esq. Page 6 August 9,201 8 Further, the Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemptions (a), (c), (f) and (n) without any further explanation as to the exemptions' specifically applicability to a responsive record or portion of a responsive record. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Order Accordingly, the Department is ordered to provide Mr. Dreslinslci with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations 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, V Rebecca S. Murray Supervisor of Records cc: Michael P. Dreslinski