Ardil Innis v. Department of Criminal Justice Information Services (SPR 20191809)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 19, 2019 SPR19/1809 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Ardil Innis appealing the response of the Department of Criminal Justice Infomrntion Services (DCJIS) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Innis requested "the date and time of any inquiry ... " relating to his name through DCJIS by any state agency "in the months of September and October 2010." Previous Appeals This request was the subject of previous appeals. See SPR19/1461 Determination of the Supervisor of Records (July 23, 2019) and SPR19/1598 Determination of the Supervisor of Records (August 22, 2019). In my August 22nd determination, I indicated that it was unclear the basis of Mr. Innis' appeal and directed him to describe his specific objections to DCJIS' July 261 h response. Mr. I1mis clarified his objections to DCJIS' response and this appeal, SPR19/1809, was opened as a result. In its response, DCJIS denied access to responsive records pursuant to Exemptions (a) and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f). Purpose of request; identity ofrequestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested info1mation than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Boug as v. Chief of Police of Lexington, 3 71 Mass. 59, 64 (1976). Accordingly, Mr. Innis' purpose in making the request has no bearing on the public status of any existing 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

Agapi Koulouris, Esq. SPR19/1809 Page 2 September 19, 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, § 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. 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. DCJIS' July 261 response 1, In its July 26th response DCJIS writes, "[i]nforn1ation contained within an audit of the Criminal Justice Information System (CJIS) is exempt from public disclosure under the provisions ofM.G.L. c. 4, s. 7 clause 26(a), M.G.L. c. 6, § 172, 28 CPR 20.33 and 18 USC 2721. A CJIS audit contains information that is considered Criminal Offender Record Infonnation, Criminal History Record Information and/or Driver's License or History infonnation that is exempt under the aforementioned statutes. Furthermore, said information may also contain investigatory information exempt from public disclosure under M.G.L. c. 4, s. 7 clause 26(f). Based on this information, the requested records are being withheld from disclosure." DCJIS also provides inforn1ation about submitting a "Rule 17 motion" to obtain the records. You indicate "[i]fthe court authorizes access to said records, DCJIS will produce the requested information." Exemption (a) Exemption (a), known as the statutory exemption, pennits the withholding of records that are: specifically or by necessary implication exempted from disclosure QY statute G. L. c. 4, § 7(26)(a).

Agapi Koulouris, Esq. SPR19/1809 Page 3 September 19, 2019 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 disclos4re 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. Exemption (f) 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 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. Inforniation relating to an ongoing investigation may be withheld if disclosure could alert 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. Bou gas v. Chief of Police of Lexington, 3 71 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); 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 Reinstein, 378 Mass. at 289-90. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § IO(b )(iv) (written response must

Agapi Koulouris, Esq. SPR19/1809 Page4 September 19, 2019 "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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. DCJIS' July 26th response did not contain the specificity required in a denial of access to public records. Instead, DCJIS merely cites G. L. c. 6, § 172, 28 C.F.R. 20.33 and 18 U.S.C. 2721, as they operate through Exemption (a) without any further explanation as to the statutes' applicability to the responsive records. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law. G. L. c. 66, § lO(b)(iv). Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although DCJIS cites G. L. c. 6, § 172, 28 C.F.R. 20.33 and 18 U.S.C. 2721, it remains unclear how the statutes specifically or by necessary implication permit it to withhold the requested records from disclosure. With respect to Exemption (f), DCJIS states that" ... said information may also contain investigatory information exempt from public disclosure ...." However, it is unclear whether these investigatory records relate to an ongoing investigation. It is additionally uncertain how disclosure of the responsive records "would probably so prejudice the possibility of effective law enforcement that such dis.closure would not be in the public interest" as required to withhold records under Exemption (f). Further, DCJIS did not meet its burden of explaining with specificity how the requested 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 constrned and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory dtsclosure. G. L. c. 66, § lO(a). Conclusion Accordingly, DCJIS is ordered to provide Mr. Innis with a response to the request, 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 this office at pre@sec.state.ma.us.

Agapi Koulouris, Esq. SPR19/1809 Page 5 September 19, 2019 Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Ardil Innis