Linda Matchan v. Berkshire County Sheriff's Office (SPR 20181249)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 30, 2018 SPRlS/1249 Daniel Sheridan, Esq. Assistant Superintendent/Legal Counsel Berkshire County Sheriffs Office 467 Cheshire Road Pittsfield, MA 01201 Dear Attorney Sheridan: I have received the petition of Linda Matchan appealing the response from the Berkshire County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Matchan requested records on August 6, 2018 relating to a named individual "sentenced to six months at a House of Correction in either 2010 or 2011." The Department provided a response later that day to Ms. Matchan citing Exemption (a). Taking issue with the exemption claimed by the Department, Ms. Matchan appealed the Department's response to this office on August 17, 2018. 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 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 ofthe reeords 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. G. L. c. 66, § lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(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 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Daniel Sheridan, Esq. SPR18/1249 Page 2 August 30, 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 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). The Department cites the Criminal Offender Record Information (CORI) Act for the reasoning behind withholding requested public records in their August 6, 2018 response to Ms. Matchan. The Department asserts that Ms. Matchan requested documents that identify a certain individual which would be protected as CORI. See G. L. c. 4, § 7 (26)(a). The Department has cited the CORI Act, G. L. c. 6, § 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI is defined as: [R]ecords 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 _________a_ rr_a_1-g-nm--en-t~. ~C~r~im~in-aioifender record mformation 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 G. L. C. 6, § 167. 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 August 6th response.

Daniel Sheridan, Esq. SPR18/1249 Page 3 August 30, 2018 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 ofrecords at the time of the request. See G. L. c. 66, § lO(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, § 1O (b )(iii). It is unclear what records the Department is withholding from Ms. Matchan concerning her request or if the records are in the Department's possession. See G. L. c. 66, § 1 O(b )(ii), (b )(iii). The Department must identify each record withheld and explain why the exemption applies in the manner described above. See G. L. c. 66, § 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, § lO(a). Order Accordingly, the Department is ordered to review the requests made by Ms. Matchan and provide a written response to Ms. Matchan, 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 cc: Linda Matchan