Tommy Birks v. Holyoke, City of - Police Department (SPR 20181240)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 29, 2018 SPRlS/1240 Officer Caron L. Porter City of Holyoke - Police Department 13 8 Appleton Street Holyoke, MA 01040-5706 Dear Officer Porter:. I have received the petition of Tommy Birks appealing the response of the City of Holyoke Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Birks requested "a copy of [an identified individual's] Arrest/Booking Reports, Incident Reports, Supplemental Reports, Written Statements, Recorded Statements, Evidence Reports, and Reports pertaining to fugitive from justice arrest in the State of New York." The Department denied his request claiming the responsive records are exempt from disclosure pursuant to Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). The Department additionally indicates it does not possess responsive records to a portion of Mr. Birks' request. Tlte 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 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. 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

Officer Caron L. Porter SPR18/1240 Page 2 August 29, 2018 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. Purpose of request; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Birks' purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Birks may wish to consider another means of seeking to obtain any existing responsive records. The Department's response The Department indicates its intention to withhold the following requested records: "[the identified individual's] Arrest/Booking Reports, Incident Reports, Supplemental Reports, Written Statements, Recorded Statements, Evidence Reports." The Department indicates the records are being withheld pursuant to the Criminal Offender Records Act as it operates through Exemption (a) of the Public Records Law and Exemption (f) of the Public Records Law. The Department indicates that with respect to the request for "[the identified individual's] ... Reports pertaining to fugitive from justice arrest in the State of New York," the Department "does not have possession, custody or control of the records requested." Exemption (a) The Department indicates that "[t]he records contain information about 'CORI where the defendant was detained prior to trail [sic] or release with conditions under subsection (2) of the section 58A of chapter 276, sentencing incarceration, rehabilitation or release. Such information shall be restricted to that recorded as a result of the initiation of criminal proceedings related thereto.'"

Officer Caron L. Porter SPR18/1240 Page 3 August 29, 2018 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 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). 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 Criminal Offender Record Information (CORI). Section 3 of Chapter 69 of the Acts of 2018. 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, § 167 ( emphasis added). It is unclear how all of the withheld records fall under the CORI Act; specifically, it is uncertain how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In addition, the Supreme Judicial Court has held "there is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public." Globe Newspaper Co. v. Dist. Attorney for the Middle Dist., 439 Mass. 374,384 (2003).

Officer Caron L. Porter SPR18/1240 Page 4 August 29, 2018 It is unclear whether the Department possesses responsive records that are considered public in light of the new CORI definition and/or the Globe decision. See G. L. c. 66, § 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 511 ( custodian has the burden of establishing the applicability of an exemption). The Department must clarify this matter and produce any such records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1 O(a). Exemption (I) The Department indicates that "[t]he records requested contain information regarding an 'investigation and confidential investigative techniques."' 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)(f). 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. 281,290 n.18 (1979). 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's response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an "investigation and confidential investigative techniques," it does not explain the subject of the investigation or whether it is ongoing nor does it describe how the requested records are part of the investigation. Further, the Department did not demonstrate how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such

Officer Caron L. Porter SPR18/1240 Page 5 August 29, 2018 disclosure would not be in the public interest" as required to withhold records under Exemption (f). Duty to comply with requests for records The Department indicates that it "does not have possession, custody or control of the records requested." The Department further indicates that "the records requested may be the possession, custody or control of the following department/agency: The State of New York." 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii) (written response must "identify any public records or categories of public records sought that are within the possession, custody, or control of the agency"). When applicable, a written response must "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency" and must "identify the agency or municipality that may be in possession, custody or control of the public record sought, if known." G. L. c. 66, § lO(b)(ii-iii). Whereas the Department has identified the categories ofrecords not in its possession, custody or control and has identified an entity that may be in possession of the requested records, I find the Department has met its burden in responding to this portion of the request. I understand a Public Records Division staff attorney made contact with your office about this matter. Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Birks with responsive records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Tommy Birks