Ryan Lessard v. Haverhill, City of - Police Department (SPR 20191330)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S, Murray Supervisor of Records July 11, 2019 SPR19/1330 Laurie A. Brown Records Clerk Haverhill Police Department 40 Bailey Blvd. Haverhill, MA 01830 Dear Ms. Brown: I have received the petition of Ryan Lessard of the New Hampshire Union Leader appealing the response of the City ofHaverhill's Police Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Lessard requested police reports concerning an incident in Salem, NH. The Department provided a response to Mr. Lessard on June 26, 2019. Mr. Lessard appealed the Department's response to this office. 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. G. L. c. 66, § lO(b)(iv). If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Ms. Laurie A. Brown SPR19/1330 Page 2 Julyll,2019 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). The Department cites the Criminal Offender Record Information (CORI) Act for the reasoning behind withholding requested records. See G. L. c. 4, § 7 (26)(a). Please note that an updated definition of CORI is currently in effect. CORI is defined as: [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. The Department provided a supplemental response on July 5, 2019 to this office. The Department states that "[p]ursuant to M.G.L. c. 6, section 175, a CJA (Criminal Justice Agency) may disseminate CORI to the individual to who it pertains, or to the individual's attorney, with a signed release from the individual. The CORI provided shall be limited to information compiled by the CJA, such as a police report prepared by the CJA. A CJA may not provide an individual with any CORI obtained through CJIS." It is unclear how the withheld records are exempt under the CORI Act; specifically, it is uncertain how all of these records are restricted to "information recorded in criminal proceedings that are not dismissed before arraignment" as described above.

Ms. Laurie A. Brown SPR19/1330 Page 3 Julyll,2019 Co11cl11sio11 Accordingly, the Department .is ordered to review the request and provide a written response to Mr. Lessard, made in accordance with the Public Records Law, its Access Regulations and this order 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, ~M~ Supervisor of Records cc: Ryan Lessard