Vira D. Cage v. Belchertown, Town of - Police Department (SPR 20190570)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 1, 2019 SPR19/570 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." Prior appeal The responsive arrest report and booking photo were the subjects of a prior appeal. See SPR19/395 Determination of the Supervisor of Records (Supervisor) (March 1, 2019). 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." Ms. Cage petitioned the Supervisor and SPRl 9/395 was opened. In my March 1st determination, I ordered the Department to clarify and specifically support its denial under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a). In addition, I found that the Department did not identify what records the Department has in its possession that are responsive to Ms. Cage's request for an arrest report and booking photo of an identified person. 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 SPR19/570 Page 2 April 1, 2019 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, § IO(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). The Department's March 4, 2019 supplemental response In its March 4th supplemental response, the Department asserts, "[a]ll of the records you requested, and in the possession of the Belchertown Police [Department], are exempted from release by statute under the [CORI Act], G. L. c. 6, § 167, CORI ... " The Department simply provided the statutory language of the CORI Act. Exemption (a) On February 19th, the Department sent an email to this office and to Ms. Cage claiming that the record is withheld as CORI under Exemption (a). In its March 4, 2019 response, the Department reiterated its claim that the records requested have been withheld under the CORI Act. 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

Chief Christopher G. Pronovost SPR19/570 Page 3 April 1,2019 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 In its February 19th email and its March 4th response, the Department has cited the CORI Act to withhold the arrest report and booking photo. G. L. c. 6, § 167. In my March 1st determination, I advised the Department 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, 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's February 19th email and March 4th responses 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 response to my March 1st order, you provided Ms. Cage with a supplemental response which merely recited the language of the CORI Act, without providing the specificity necessary to support withholding the records, in their entirety, under CORI and Exemption (a). Ms. Cage petitioned the Supervisor again pertaining to the Department's denial of her request for the arrest report and booking photo of an identified person, and she makes reference to a 2017 Superior Court ruling pertaining to a request by the Boston Globe (Globe) for an arrest report and booking photo from another police department in the Commonwealth that had denied the Globe's request under the CORI Act. See Boston Globe Media Partners, LLC v. Dept. of Criminal Justice Info. Servs. et al., Suffolk Sup. No. 15-1404-D (December 4, 2017).

Chief Christopher G. Pronovost SPR19/570 Page4 April 1, 2019 In a telephone conversation with a Public Records Division staff attorney, you explained that underlying incident that led to the arrest of the identified person has moved past arraignment toward prosecution. The Department continues to assert that the arrest report and booking photo are CORI that may be withheld under Exemption (a). In light of the updated definition of the CORI Act, it is still unclear how the requested arrest report and booking photo are "records or information recorded in a criminal proceeding that was not dismissed before arraignment." The Department has not demonstrated that the records were created in a criminal proceeding; therefore, the Department has not met its burden to withhold the records under the CORI Act. 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 under CORI as it operates through Exemption (a). 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, § lO(a). Conclusion Accordingly, the Department is ordered to review the request, redact the requested records where necessary, and provide Ms. Cage with the responsive records 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, ~a~ Supervisor of Records cc: Vira D. Cage