Marc Aldana v. Massachusetts State Police (SPR 20191498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records August 6, 2019 SPR19/1498 Alycia J. DeAngelis, Esq. Department of State Police Office of the Chief Legal Counsel 470 Worcester Road Framingham, MA 01702 Dear Attorney DeAngelis: I have received the petition of Marc Aldana appealing the response of the Depatiment 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. Aldana requested a copy of: "[a]ll police reports ofthermite's use as a burglary tool as defined under Massachusetts General Laws Chapter 266 Section 49." Prior appeal The responsive records were the subject of a prior appeal. See SPRl 9/1403 Determination of the Supervisor of Records (Supervisor) (July 25, 2019). Whereas the prior appeal was opened due to a non-response to the request, I closed SPRl 9/1403 by ordering the Department to provide Mr. Aldana with a response to his request. In its July 22°d response, the Department denied the request in its entirety under Exemption (a) and the Criminal Offender Record Information Act (CORI); the privacy clause of Exemption (c) and Exemption (f). As a result, Mr. Aldana petitioned the Supervisor of Records (Supervisor), and the current appeal was opened. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govenunental 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 One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Alycia J. DeAngelis, Esq. SPR19/1498 Page 2 August 6, 2019 order to withhold a requested record. G. L. c. 66, § lO(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) The Depaiiment claims that the reports generated by the Department that relate to a criminal charge or arrest are considered Criminal Offender Record Information (CORI) which is exempt from public.disclosure under Exemption (a). Exemption (a) 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, 37 7 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 tecord," "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. The CORI Act 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

Alycia J. DeAngelis, Esq. SPRl 9/1498 Page 3 August 6, 2019 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 re.stricted 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 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 how the withheld records fall under the CORI Act; specifically, how the records are "information recorded in criminal proceedings that are not dismissed before arraignment," as described in the new CORI definition. In addition, CORI does not include evaluative information, statistical and analytical repmis, nor records or information that does not directly or indirectly identify the subject(s) of the record. The Depaiiment has not met its burden and 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). Exemption (c) The Depaiiment asse1is, " ... the requested reports implicate the privacy interests of the accused, those identified as victims (if any), those otherwise involved in reported crime, and third paiiies mentioned in the reports. G. L. c. 4, § 7(26)(c)." Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption ( c) contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The Department has claimed the second clause of Exemption (c), the privacy clause, is applicable to withhold records or portions of records.

Alycia J. DeAngelis, Esq. SPR19/1498 Page 4 August 6, 2019 Second clause of (c) -privacy Analysis under the second clause of Exemption ( c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number) .. This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. In claiming the second clause of Exemption ( c) the Depaiiment must detail whether disclosure would result in personal embarrassment to an individual of normal sensibilities; whether the materials sought contain intimate details of a highly personal nature; and whether the same information is available from other sources. See PETA , 4 77 Mass. at 292. Therefore, I find the Department did not meet its burden of specificity in claiming the second clause of Exemption ( c) to withhold the rep01is in their entirety. Exemption (I) The Department has also claimed that Exemption (f) allows the Department to withhold the responsive reports. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials

Alycia J. DeAngelis, Esq. SPR19/1498 Page 5 August 6, 2019 would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could ale1i suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-290. The Department states, "[t]o the extent that disclosure of the identities of witnesses or other information in response to [Mr. Aldana's] request would tend to adversely impact the Department in its effective investigation of other matters going forward, the Department would withhold the requested records on this ground." Citing, Bougas, 371 Mass. 59. The Depaiiment has not met its burden under the Public Records Law by applying a blanket exemption claim under Exemption (f), not specifically explaining how disclosure would prejudice any ongoing investigations, or how witness identities would be compromised even if the Department redacts the reports. Burden of specificity; duty to segregate The Department denied Mr. Aldana's request, in its entirety, under the CORI Act as it operates through Exemption (a), the second clause of Exemption (c) and Exemption (f) of the Public Records Law without suppmiing its withholding of the responsive reports in their entirety. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § IO(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 reports, 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 Depaiiment must produce any non-exempt, segregable pmiions of the responsive repmis. G. L. c. 66, § IO(a). Conclusion Accordingly, the Department is ordered to provide Mr. Aldana with a response to the request, provided 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

Alycia J. DeAngelis, Esq. SPR19/1498 Page 6 August 6, 2019 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: Mark Aldana Alycia J. DeAngelis, Esq.