John D. Rousseau v. Lancaster, Town of - Police Department (SPR 20191956)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 4, 2019 SPR19/1956 Lt. Everett Moody Records Access Officer Lancaster Police Depaiiment 1053 Main Street Lancaster, MA 01523 Dear Lt. Everett Moody: I have received the petition of Jolm Rousseau appealing the response of the Town of Lancaster's 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. Rousseau requested records relating to a police report. The Department provided a response to Mr. Rousseau which he received on September 12, 2019. Mr. Rousseau appealed the response to this office on September 23, 2019. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all goverm11ental 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 Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Lt. Everett Moody, RAO SPR19/1956 Page 2 October 4, 2019 Exemption (a) Exemption (a), known as the statutory exemption, 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, 3 77 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 the requested records. The Department explained to Mr. Rousseau in the response that the documents fall under the CORI Act whe~1 they are a "record that is recorded as a result of criminal proceedings or other consequent proceeding inay be withheld under C.O.R.I." The Department asserts that Mr. Rousseau requested documents that identify a certain individual which would be pr~tected as CORI. See G. L. c. 4, § 7 (26)(a). The Depaiiment has cited the CORI Act as applicable to withhold responsive records. 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 5 SA 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 rep01is 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. It is unclear how the withheld records are exempt under th~ CORI Act; specifically, it is uncertain how all of these records contain "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. The Department has not satisfied the requirements under Exemption (a) in its response.

Lt. Everett Moody, RAO SPR19/1956 Page 3 October 4, 2019 Conclusion Accordingly, the Depaiiment is ordered to review the requests made by Mr. Rousseau and provide a written response to Mr. Rousseau, made in accordance with the Public Records Law, its Access Regulations and this order 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: John Rousseau