Ardil Innis v. Department of Criminal Justice Information Services (SPR 20192287)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

November 25, 2019 SPR19/2287

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 Information Services (DCJIS) to a request for public records. G. L. c. 66, § 10A; 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); SPR19/1598 Determination of the Supervisor of Records (August 22, 2019); and SPR19/1809 Determination of the Supervisor of Records (September 19,

2019). In my September 19" determination, I found that DCJIS had not met its burden to - withhold responsive records under Exemptions (a) and (f) of the public Records Law. Accordingly, I ordered DCJIS to provide Mr. Innis with a response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. Subsequently, DCIJIS responded on October 7, 2019, providing additional information regarding its exemption claims. Unsatisfied with DCJIS’ response, Mr. Innis petitioned this office and this appeal, SPR1 9/2287, was opened as a result.

Purpose of request; identity of requestor

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 information 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 Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64

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

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(1976). Accordingly, Mr. Innis’ purpose in making the request has no bearing on the public status of any existing responsive records,

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, § 10A(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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

DCJIS’ October 7 response

In its October 7, 2019 response, DCJIS asserts that the records are exempt under Exemptions (a) and (f) of the Public Records Law.

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

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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.

Under Exemption (a), DCJIS reiterates that “[i]nformation contained within an audit of the Criminal Justice Information System (CJIS) is exempt from public disclosure under the provisions of M.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 Information, Criminal History Record Information and/or Driver’s License or History information that is exempt under the aforementioned statutes.”

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)(£).

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 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, Bougas v. Chief of Police of Lexington, 371 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.

Under Exemption (f), DCJIS states that it is a statutorily mandated agency in the Commonwealth authorized “. . . to manage and maintain the Criminal Justice Information System (CJIS), an automated system that provides critical criminal justice-related data, such as criminal records (including arrest records), wanted and missing person information, and restraining orders, to law enforcement across the state and around the country, twenty-four hours a day, seven days a week.” See G. Lc. 6, § 168 and G. Lc. 6A, § 18. DCJIS states that CJIS “...

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also provides access to external information sources such as the National Law Enforcement Telecommunications System (Nlets), the interstate criminal justice and public safety network that provides for the exchange of law enforcement, criminal justice, and public safety related information, including nationwide driver and motor vehicle registration information.”

DCJIS explains that it“... is also the FBI designated CJIS Systems Agency (CSA) for Massachusetts, that is, the criminal justice agency with overall responsibility for the administration and usage of CJIS within a state.” As a result, DCJIS states that it “. . . is subject to federal laws and regulations and, . . . is required to enforce FBI policies regarding monitoring system use, enforcing system discipline and security, and assuring that all users follow operating procedures. .

Further, DCJIS explains that it“... has an audit function that is used as an investigatory tool by law enforcement on the municipal and state level, as well as by federal law enforcement including the FBI and Department of Homeland Security, in the course of conducting criminal investigations of which subjects of the inquiries are unware.” DCJIS explains that “. . . the audit documents contain highly sensitive and confidential information[,]” hence, disclosure of these records, whose security is DCJIS’ statutory responsibility, would not only “. . . reveal the existence of any ongoing confidential, criminal investigations and could potentially compromise them,” but also, “... set a dangerous precedent and would compromise all potential criminal investigations in the Commonwealth.”

Additionally, DCJIS explains that where “[q]ueries of motor vehicle registrations are conducted by law enforcement officers and criminal justice agencies for numerous reasons including criminal investigations of which the subject is unaware, . . . [d]isclosure of these audits -would clearly prejudice ongoing and future investigative efforts by law enforcement. An individual who wants to know whether he or she is under investigation could do so simply by making a public records request from DCJIS.” Accordingly, DCJIS contends that “. . . the records requested clearly fall into the category 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’ and should be withheld pursuant to [Exemption

(f).”

DCIIS also adds that it “. . . invokes the ‘Glomarization Principle,’ and neither confirms nor denies the existence of the records requested. Bassiouni v. CIA, 392 F.3d 244, 246 (1st Cir.2004). See generally Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976).” DCJIS also references previous Supervisor of Records (Supervisor) determinations, SPR17/100 and SPR11/253, where the Supervisor upheld DCJIS’ decision to withhold similar audit records from — disclosure.

Despite DCJIS’ claims, it remains unclear how the requested information constitutes CORI that can be withheld under Exemption (a), or how disclosure of the information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not

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be in the public interest” as required to withhold records under Exemption (f). See SPR19/1809,

Further, I find DCJIS must clarify whether it possesses an independent record that contains the requested information and indicate whether segregable portions that do not fall within an exemption can be provided. See Reinstein, 378 Mass. at 289-90 (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(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.

Eleooa

€hecea S. Murray ay

Supervisor of Records

ce: Ardil Innis