Vira D. Cage v. Belchertown, Town of - Police Department (SPR 20190395)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 1, 2019 SPR19/395 Christopher G. Pronovost Chief of Police Town of Belchertown - Police Department 70 State Street Belchertown, MA O1 007 Dear Chief Pronovost: I have received the petition ofVira D. Cage appealing the response of the Town of Belchertown Police Department (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on February 8, 2019 and in-person, Ms. Cage requested: "the arrest report and mug shot or booking photo of an identified individual allegedly involved in an incident on January 18, 2019 at the Belchertown High School." By email on February 12, 2019, David Squires, Administrative Assistant to the Chief Communications Director, denied the request stating, "[t]he information that you requested is exempt from disclosure. The sheet that I attached contains a listing of the exemptions." In a second email to Ms. Cage the same day, Mr. Squires wrote, "[e]xemption "a" would be applicable as to why the records would be exempt from disclosure." As a result of the denial, Ms. Cage petitioned the Supervisor of Records (Supervisor), and this appeal was opened. 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 of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 1 O(b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends 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

Chief Christopher G. Pronovost SPR19/395 Page2 March 1, 2019 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) On February 19th, after being notified of this appeal, the Department sent an email claiming that the record is withheld as Criminal Offender Record Information under 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. 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 is defined as: "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,

Chief Christopher G. Pronovost SPR19/395 Page 3 March 1, 2019 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). The Department did not provide any specificity as to how the requested records may be withheld under CORI as it operates through Exemption (a) of the Public Records Law. In fact, in its February lih email response to Ms. Cage, Mr. Squires only stated that the record is withheld under Exemption (a) and provided Ms. Cage with an information sheet listing the exemptions under the Public Records Law. In your February 19th email to this office, you stated that the Department is claiming CORI; however, neither of the Department's responses provided the specificity necessary to support withholding the records, in their entirety, under CORI and Exemption (a). In light of the updated definition of the CORI Act, it is unclear how the requested 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, § lO(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 public records. G. L. c. 66, § 10(a ). Furthermore, 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 what records it possesses that may be responsive to Ms. Cage's request. Therefore, the Department must identify what type ofrecord(s) it has in its possession that the Department withheld.

Chief Christopher G. Pronovost SPR19/395 Page4 March 1, 2019 Conclusion Accordingly, the Department is ordered to provide Ms. Cage with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 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: Vira D. Cage