John D. Rousseau v. Massachusetts State Police (SPR 20181385)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 2, 2018 SPR18/1385 Alycia DeAngelis, Esq. Staff Counsel Massachusetts State Police 470 Worcester Rd Framingham, MA 01702 Dear Attorney DeAngelis: I have received the petition of John Rousseau appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rousseau requested records relating to named individuals in the custody of the Commonwealth Fusion Center (Fusion Center). Previous appeals This request was the subject of previous appeals. See SPRl 8/825 Determination of the Supervisor of Records (June 15, 2018) and SPR18/1163 Determination of the Supervisor of Records (August 20, 2018) (June 15th and August 20th determinations). In my August 20th determination, I encouraged Mr. Rousseau to provide the Department with a more detailed request to enable the Department to better search for responsive records. Following the August 20th determination, the Department provided a response dated September 5, 2018, based on Mr. Rousseau's clarified request. In this response, the Department denied access to responsive records pursuant to Exemptions (a), (c), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f), (n). Unsatisfied with the Department's response, Mr. Rousseau petitioned this office and this appeal, SPR18/1385, was opened as a result. 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). 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

Alycia DeAngelis, Esq. SPR18/1385 Page 2 October 2, 2018 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. 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. The Department's September 5th response In its September 5, 2018 response, the Department indicated that it provided a detailed catalogue of the records stored in the files related to the Fusion Center investigation. The Department further claimed that its provision of the catalogue" ... represents [its] full and complete compliance with its obligation as a records custodian under the Public Records Law. The Department precisely identified records in its custody which were responsive to your request. The Department thoroughly explained why the records are not subject to public disclosure under the Public Records Law. As such, the Department denies [Mr. Rousseau's] request under [E]xemptions (a), (c), (f), and (n) ...." Exemption (a) In its May 10, 2018 response, the Department cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as it operates through Exemption (a) of the Public Records Law to withhold responsive records from disclosure. Exemption (a), known as 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."

Alycia DeAngelis, Esq. SPRlS/1385 Page 3 October 2, 2018 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. The statute provides in relevant part: [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 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 not include information concerning any offenses which are not punishable by incarceration. G. L. C. 6, § 167. Based on its September 5th response, it is unclear if the Department continues to claim the CORI Act to withhold responsive records. If so, please note that in my June 15th determination, I found that the Department did not satisfy the requirements under Exemption (a) because, it was unclear how the withheld records were exempt under the CORI Act. Specifically, I indicated that "it is uncertain how all of these records contain 'information recorded in criminal proceedings that are not dismissed before arraignment,' as described above ...." See June 15th determination. Whereas the Department's September 5th response does not provide any further explanation regarding how Exemption (a) applies, I find the Department has not met its burden to withhold responsive records in their entirety under Exemption (a). Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy. G. L. c. 4, § 7(26)(c).

Alycia DeAngelis, Esq. SPR18/1385 Page 4 October 2, 2018 Second clause ofE xemption (c) - privacy Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n. 13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In my June 15th determination, I found that the Department did not satisfy the requirements under Exemption (c) because it did not" ... address the factors articulated in PETA" and also did not establish "whether there is a privacy interest that is not substantially outweighed by a public interest." See June 15th determination. Whereas the Department's September 5th response does not provide any further explanation regarding the applicability of Exemption ( c) , I find the Department has not met its burden to withhold responsive records under Exemption (c ) of the Public Records Law. Exemption (f) 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

Alycia DeAngelis, Esq. SPR18/1385 Page 5 October 2, 2018 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. In my June 15th determination, I indicated that the Department did not "identify records in its possession that relate to confidential investigative techniques." I also indicated that the Department did "not demonstrate how the disclosure of all of the responsive records 'would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest' as required to withhold records under Exemption (f)." See June 15th determination. In the Department's July 24th response, the Department indicated that it provided Mr. Rousseau with "a detailed catalogue of the responsive records in its possession." See August 20th determination. However, based on the Department's September 5th response, it is unclear whether the responsive records pertain to an ongoing investigation. The Department must explain the subject of the investigation and describe how the requested records are part of the investigation. It is additionally uncertain how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Exemption (n) Exemption (n) permits the withholding of records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security.

Alycia DeAngelis, Esq. SPR18/1385 Page 6 October 2, 2018 G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would undermine public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage."' People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric.Res., 4 77 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety."' Id. at 289-90. The PETA decision further provides that "[b ]ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. In my June 15th determination, I found that the Department did not satisfy the requirements under Exemption (n) because, it did not demonstrate how the records "'resemble the records listed as examples in the statute"' and did not provide "sufficient factual heft" to withhold records under Exemption (n). Whereas the Department's September 5th response does not provide any further explanation regarding how Exemption (n) applies, I find the Department has not met its burden to withhold responsive records in their entirety under Exemption (n). Further, I find the Department did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 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, § 1O (a). I understand a Public Records Division staff attorney contacted your office about this appeal but was unable to reach you prior to the issuance of this decision. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Rousseau 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.

Alycia DeAngelis, Esq. SPR18/1385 Page 7 October 2, 2018 Sincerely, ~r~ Supervisor of Records cc: John Rousseau