Ardil Innis v. Department of Criminal Justice Information Services (SPR 20192534)

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

Rebecca S, Murray Supervisor of Records

January 10, 2020 SPR19/2534

Agapi Koulouris, Esq.

General Counsel

Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200

Chelsea, MA 02150

Dear Attorney Koulouris:

Ihave 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 S 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); SPR19/1809 Determination of the Supervisor of Records (September 19, 2019); and SPR19/2287 Determination of the Supervisor of Records (November 25, 2019). In my November 25" determination, I found that DCJIS had not met its burden of specificity to withhold the requested information under Exemptions (a) and (f) of the public Records Law. I also directed DCJIS to clarify whether it possesses an independent record of the requested information or can provide a segregable portion of the responsive record. Subsequently, DCJIS responded on December 18, 2019, providing additional information regarding its exemption claims. Unsatisfied with DCJIS’ response, Mr. Innis petitioned this office and this appeal, SPR19/2534, 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

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. | SPR19/2534 Page 2 * January 10, 2020

circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (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’ December 18" response

In its December 18, 2019 response, DCJIS cites two decisions, Commonwealth v. Lampron, 441 Mass. 265 (2004) and Commonwealth v. Dwyer 448 Mass, 122 (2006), to explain how CJIS audits are handled and/or produced during court proceedings under Rule 17 summons. Explaining how CJIS audits may include CORI information, DCJIS states that “. .. when a query is submitted through CJIS for the CORI record of a subject, the CJIS audit will display the following details: Name, date of birth, social security number and Probation Central File (PCF) number. The identifying information of who ran the query and when the query was conducted will also be included. The system may also include a copy of the CORI when the CORI is viewed as part of that transaction.” DCJIS asserts that “CORI is defined in M.G.L. c. 6, § 167, as “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...” As such where, “. .. the information contain[ed] in a CJIS audit may identify an individual with a criminal charge and/or include a copy of the actual CORI response[,] . . . the CJIS audit information is exempt from public disclosure under M.G.L. c. 4, § 7 clause 26(a) and G.L, c. 6, § 172.”

In my November 25" determination, I directed DCJIS to clarify whether it possesses an independent record that contains the requested information and whether the requested information can be segregated from responsive records. DCJIS states that “. . . it does not possess

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an independent record containing said information that can be segregated.” Consequently, DCJIS asserts that the requested information is exempt from Exemptions (a) and (f) of the Public Records Law. DCJIS also indicates that it incorporates by reference its previous responses.

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 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.

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. Lc. 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 alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be

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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 n the public interest.” See Reinstein, 378 Mass. at 289-90.

Despite DCJIS’ response, it remains unclear how the requested information, “the date and time of any inquiry . . .[,]” 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 be in the public interest” as required to withhold records under Exemption (f). See SPR19/2287,

Conclusion

Accordingly, the DCJIS is ordered to review the records, redact where necessary and 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 (10) 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.

Alosce

telecco. S. Murray C

_ Supervisor of Records

cc: Ardil Innis