Justice Ainooson v. Department of State Police - Crime Lab (SPR 20181252)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 30, 2018 SPRlS/1252 Kerry A. Collins, Esq. Department of State Police - Crime Laboratory 124 Action Street Maynard, MA 01754 Dear Attorney Collins, I have received the petition of Justice Ainooson appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ainooson requested all documents related to a certain case file number. The Department responded on August 3, 2018 by requesting more information. 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, § IOA(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. 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. Ainooson objects to the Department's claim under the Criminal Offender Records Information (CORI) Act for him to provide additional information. 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

Kerry A. Collins, Esq. SPR18/1252 Page2 August 30, 2018 Exemption (a) The Department asserts that it is seeking information to confirm Mr. Ainooson's identity to determine if the records he seeks can be released to him. The Department also references G. L. c. 94, § 7 cl. 26(a); 803 C.M.R. 2.06; and 803 C.M.R. 7.10(6) in support of its position that they require more information before releasing the records to Mr. Ainooson. 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 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. 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

Kerry A. Collins, Esq. SPR18/1252 Page 3 August 30, 2018 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). With respect to the responsive records, the Department asserts "the records you are requesting pertain to you are CORI information." The Department request Mr. Ainooson provide them with "your Mother's Maiden name and date of birth which is information that will confirm your identity." The Department indicates they "cannot confirm your identity with your date of birth alone." Conclusion The parties are encouraged to communicate further to determine whether Mr. Ainooson has a unique right to access these records. Accordingly, I will consider this appeal closed. Sincerely, ~a~ Supervisor of Records cc: Justice Ainooson