Adam Bradley v. Peabody, City of - Police Department (SPR 20192485)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 31, 2019 SPR19/2485 Captain Eric Zawacki Peabody Police Depaiiment 6 Allens Lane Peabody, MA O1 960 Dear Captain Zawacki: I have received the petition of Adam Bradley appealing the response of the Peabody Police Department (Depaiiment) to a request for public records. G. L. c. 66, § 1O A; also 950 C.M.R. 32.08(1 ). Specifically Mr. Bradley reqtiested copies of records regarding a home shooting incident. Mr. Bradley indicated that the incident" ... took place sometime in the year 2011-2012." Previous Appeal This appeal is the subject of a previous case. See SPRl 9/1843 (September 18, 2019). I closed SPRl 9/1843 by ordering the Depaiiment to provide Mr. Bradley with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations without delay. It is my understanding that the Department provided Mr. Bradley a response dated November 25, 2019. Tlte 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 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

Captain Eric Zawacki SPR19/2485 Page 2 December 31, 2019 or redacted pmiion of the responsive record. Tlte Department's response In its November 25111 response the Department states, "[t]his request is being denied in accordance to Exemption (a) [u]nder the Massachusetts Public Records Law. Exemption A prohibits you from having a copy. The Statutory Exemption G. L. Chapter 66 Section 6a (e ), as I believe this information clearly relates to a CORI Exemption under the Public Records Law." 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, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Comi, 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 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. It should be noted that there has been an update to the definition of criminal offender record information (CORI). 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 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,

Captain Eric Zawacki SPR19/2485 Page 3 December 31, 2019 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 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 all the requested documents relate "to a CORI Exemption under the Public Records Law." The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites Exemption (a) without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find the Department did not satisfy its burden in responding to this records request. The Department is advised that 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 and its Access Regulations. G. L. c. 66, § lO(b)(iv). Conclusion Given that the Department has not met its burden to explain how an exemption applies to the requested records, the Depaiiment is ordered to review the records, redact where necessary, and provide Mr. Bradley with responsive records, 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Adam Bradley