Jamie Folk v. Massachusetts State Police (SPR 20181266)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 31,2018 SPRl811266 Icerry A. Collins, Esq. Department of State Police 470 Worcester Road Framingham, MA 0 1702 Dear Attorney Collins: I have received the petition of James Folk appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, 5 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Folk requested a copy of all emails an identified individual sent to the Crime Laboratory. The Department responded to his request providing some responsive records and claiming the remaining responsive records 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, $5167-178B; G. L. c. 4, 5 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 Norfolk Dist. v. Flatlev, 41 9 Mass. 507, 5 11 (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. 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, Massachusetts 02108 (617) 727-2832. Fax: (617) 727-5914 sec.state.ma.us/pre pre@sec.state.ma.us

Kerry A. Collins, Esq. Page 2 August 3 1,201 8 Petitions to tlze Supervisor of Records Mr. Folk is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including.. .a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses.. ." 950 C.M.R. 32.08(1)(g). Exemption (a) The Department indicates that "[ilt is Department's position that the withheld emails: 1) identify an individual; and 2) relate to the nature of a criminal charge or arrest which are considered Criminal Offender Record Information.. ." 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. 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). 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

Kerry A. Collins, Esq. Page 3 August 3 1,201 8 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). It is unclear how all of the withheld emails fall under the CORI Act; specifically, it is unclear 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). It is uncertain whether the Department possesses responsive records that are considered public in light of the new CON definition and/or the Globe decision. See 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. . . .); Flatlev, 41 9 Mass. at 5 11 (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, 5 lO(a). 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. Folk 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: James Folk