Ruben Pina v. Massachusetts State Police (SPR 20190136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 4, 2019 SPR19/136 Michael Halpin, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA O1 702 Dear Attorney Halpin: I have received the petition of Ruben Pina 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. Pina requested a copy of "[Department] reports and [e]vidence [r]eports regarding an identified individual, identified offense, and on an identified date." In a January 4, 2019 response, the Department denied Mr. Pina's request, in its entirety, pursuant to the Criminal Offender Records Information Act (CORI), as it operates through Exemption (a). As a result, Mr. Pina petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Status of the requestor In his petition to the Supervisor, Mr. Pina indicates that the information is needed to ascertain the chain of custody relating to evidence. It is important for Mr. Pina to understand that his interest in the responsive records does not afford him any greater right of access to the requested information under the Public Records Law than any other person. The Public Records Law does not distinguish between requestors. Access to a record requested 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. Pina's interest in the records will play no role in a determination as to whether the record(s) should be disclosed to the public in their entirety. 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, § 1O A( d); 950 C.M.R. 32.03(4 ). "Public 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

Michael Halpin, Esq. SPR19/136 Page2 February 4, 2019 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, § 1O (b )(iv) (written response must "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 ... "); 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). Exemption (a) 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. 1, 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. Criminal Offender Record Information Act The Department has cited the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167 to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as:

Michael Halpin, Esq. SPR19/136 Page 3 February 4, 2019 "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 .... G. L. c. 6, § 167 (emphasis added). In its January 4th response, the Department states, "[e]ven with redactions, arrest reports are defendant-specific records that 'concern an identifiable individual relate[d] to the nature ... of an arrest.'" The Department also asserts, " [m ] oreover, redacted arrest reports are still very easily 'correlated with defendant-specific information' that is otherwise available to the public, including but not limited to police daily logs, arrest registers, and other similar records compiled chronologically; chronologically maintained court records of public judicial proceedings ... " In light of the updated definition of the CORI Act, it is unclear how even redacted criminal records are "records or information recorded in criminal proceedings that are not dismissed before arraignment." The Department must clarify this matter. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 1 O(b )(iv); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive 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). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § lO(a). In its January 4th response, the Department did not identify the records, categories of records or portions of records in its possession, custody or control that it is withholding under CORI as it operates through Exemption (a). To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c: 66, § lO(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records. Therefore, the Department must identify how many and what type of record(s) it has in its possession that the Department withheld.

Michael Halpin, Esq. SPR19/136 Page 4 February 4, 2019 Conclusion Accordingly, the Department is ordered to provide Mr. Pina with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations . within ten (10) 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 Supervisor of Records cc: Ruben Pina Alycia J. DeAngelis, Esq.