Mark DesRoches v. Holden, Town of - Police Department (SPR 20190908)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 15, 2019 SPR19/908 David A. Armstrong Chief of Police Holden Police Department 1370 Main Street Holden, MA O1 520 Dear Chief Armstrong: I have received the petition of Mark DesRoches appealing the response of the Holden Police Department (Department) to a request for public records. G. L. c. 66; § lOA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. DesRoches requested a copy of an identified report within the possession of the Department concerning an incident that occurred on or about February 10, 2019. Unsatisfied with the Department's response, in which they indicated their intention to withhold the records under Exemption (a), Mr. DesRoches petitioned this office and this appeal 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). 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. 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

David A Armstrong SPR19/908 Page 2 May 15, 2019 April 1st Response In their April 1st response, the Department noted their intention to withhold the requested documents under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a). 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. 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." 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. It should be noted that there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 2018. 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

David A. Armstrong SPR19/908 Page 3 May 15, 2019 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 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, § 167 (emphasis added). It is unclear whether the Department possesses responsive records. The Department indicates that the "records are subject to several exemptions. In this case, the following is being applied: Exemption (a)." See G. L. c. 66, § 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 ....) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). Further, it is unclear how the responsive record information was recorded in criminal proceedings that were not dismissed before arraignment, as required under the updated CORI definition. 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, § 1O (a). Consequently, the Department has not met its burden of specificity in claiming CORI' s applicability through Exemption (a) of the Public Records Law to withhold the records in their entirety. The April 1st response is simply a declaration of intention to utilize Exemption (a) and CORI to withhold records rather than explaining their applicability. Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested record, the Department is ordered to review the records, redact where necessary, and provide Mr. DesRoches 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 thi.s 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.

David A. Armstrong SPR19/908 Page 4 May 15, 2019 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Mark DesRoches