Diane Lederman v. Bristol County Sheriff's Office (SPR 20181140)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 13,2018 SPR1811140 Lorraine J. Rousseau, Esq. Bristol County Sheriffs Office 400 Faunce Corner Road North Dartmouth, MA 02747 Dear Attorney Rousseau: I have received the petition of Diane Lederman of the RepublicunlMussLive appealing the response of the Bristol County Sheriffs Office (Office) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Lederman requested "the number of detainees at the Bristol County ICE Detention sites, the ages and gender of those detained, the country of origin, the length of time they have been detained, the hearing schedules as well as the schedule for removal.. .why were they detained? How does a detainee spend the day and what are the costs associated with each detainee for the state." The Office responded to her request providing some responsive records and claiming others are exempt from disclosure pursuant to the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. G. L. c. 6, 5 167-178; G. L. c. 4, fj 7(26)(a). 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 Norfollc Dist. v. Flatlev, 419 Mass. 507, 5 1 1 (1 995) (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. One Ashburton Place, Room 171 9, Boston, Massachusetts 02 108 * (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Lorraine J. Rousseau, Esq. Page 2 August 13,2018 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. The Office's response In its response, the Office indicates that "[wlith respect to the number of detainees at the Bristol County ICE Detention sites, [the Office] can provide [Ms. Lederrnan] with a record of the number of ICE Detainees in [the Office's] custody on a specified date." In her petition for appeal, Ms. Lederman includes a responsive record. With respect to the remaining categories of records, the Office explains that the "records that contain the age, gender, country of origin, length of time detained, next hearing dates and removal date of ICE Detainees would require production of the records of named ICE detainees.. . [and] such records are exempt from disclosure under [Exemption (a)], which applies to records that are 'specifically or by necessary implication exempted from disclosure by statute.' One statute covered by this exemption is G.L. c. 6, $5 167 to 178, which provides that [CORI] is not available generally to the public. As such, to the extent that some or all of the requested records constitute CORI, they are exempt from disclosure under [Exemption (a)]." 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 (1 979); 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.

Lorraine J. Rousseau, Esq. Page 3 August 13,2018 It should be noted that as part of the criminal justice reform bill 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 201 8. The current definition of CORI is as follows: "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, 5 167 (emphasis added). 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. The Office's response did not contain the specificity required in a denial of access to public records. Instead, the Office's response merely cites Exemption (a) and the CORI Act without any further explanation as to the exemption's applicability to the requested records. The Office is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Further, it is unclear why the records cannot be redacted and the segregable portions provided to Ms. Lederman. See G. L. c. 66, 5 10(a) (any non-exempt, segregable portion of a public record is subject to mandatory disclosure.). As a result, the Office did not meet its burden of explaining with specificity how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comrn'r of Boston, 378 Mass. 281, 289-90 (1 979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Office 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.

Lorraine J. Rousseau, Esq. Page 4 August 13,2018 Order Subsequent to the intervention of a Public Records Division staff attorney, I learned the Office intends to provide another response to Ms. Lederman. Accordingly, the Office is ordered to provide Ms. Lederman 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, Rebecca S. Murray Supervisor of Records cc: Diane Lederman