Richard J. Shea v. Department of State Police - Office of the Chief Legal Counsel (SPR 20201298)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 17, 2020 SPR20/1298 Christine Dowling, Esq. Staff Counsel Office of the Chief Legal Counsel Massachusetts State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Dowling: I have received the petition of Attorney Richard Shea appealing the response of the Massachusetts Department of State Police (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Attorney Shea requested all police reports, witness statements, and statements of suspects pertaining to a certain case. The Department provided a response to Attorney Shea on June 18, 2020, withholding responsive records pursuant to Exemptions (a) and (f) of the Public Records Law. Unsatisfied with this response, Attorney Shea petitioned this office and this appeal, SPR20/1298, was opened as a result. 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. 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

Christine Dowling, Esq. SPR20/1298 Page 2 August 17, 2020 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. Current Appeal In its June 18, 2020 response, the Department indicates that it is withholding responsive records pursuant to the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as it operates through Exemption (a) of the Public Records Law, as well as Exemption (f). 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. 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

Christine Dowling, Esq. SPR20/1298 Page 3 August 17, 2020 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 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 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, 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). In its June 18, 2020 response, the Department states “[t]o the extent that you have requested copies of investigative reports that led to the prosecution and subsequent convictions of individuals, your request is denied under M.G.L. c. 4, § 7 cl. 26(a)(statutory exemption)(CORI) as it contains Criminal Offender Record Information (CORI).” The Department additionally argues that “[e]ven if these materials were not specifically exempted from disclosure, the CORI law and associated statutes make clear that they are exempt by necessary implication.” Based on the Department response, I find it has not met its burden of specificity to withhold responsive records under Exemption (a). It is unclear from the Department’s response what specific responsive records it actually possesses. -Se-e G. L. c. 66, § 10(b)(iv) (written response must "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…). It is additionally unclear how responsive records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. The Department must clarify these matters. 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

Christine Dowling, Esq. SPR20/1298 Page 4 August 17, 2020 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. 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, 378 Mass. at 290 n.18. 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. With respect to Exemption (f), the Department asserts that it “has determined that the nature and the content of the report you have requested is, in fact, investigatory in nature and, therefore, not subject to public disclosure.” In his appeal petition, Attorney Shea states that “[m]ost, if not all of the requested material was compiled in 1983, thirty-seven years ago” and argues that “[t]he passage of so much time reduces significantly the likelihood that witness[es] are still alive or that the general public would consider disclosure a threat to present-day cooperation with the police.” Attorney Shea additionally notes that “the State Police can redact names where needed.” Based on the Department’s response, I find it has not met its burden to withhold the responsive records, in their entirety, pursuant to Exemption (f). Specifically, the Department has not shown that disclosure of the requested records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required by Exemption (f). Based on the Department’s response, it appears the investigation into this matter has concluded. It is unclear from the Department’s response what harm it believes would result from the disclosure of the records. Segregable portions In its June 18th response, the Department asserts that “any non-exempt portions of the requested records are inextricably intertwined with exempt portions, and, given the amount of exempt information contained in the records they ‘…will be so heavily redacted…that the records would be rendered functionally useless to [any requestor].’” Despite the Department’s statement, I find it has not met its burden to show that the responsive records may be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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).

Christine Dowling, Esq. SPR20/1298 Page 5 August 17, 2020 Conclusion Accordingly, the Department is ordered to provide Attorney Shea with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Richard Shea, Esq.