Rich Saltzberg v. Barnstable County Sheriff's Office (SPR 20201766)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 6, 2020 SPR20/1766 Donna Buckley, Esq. General Counsel Barnstable County Sheriff’s Office 6000 Sheriff’s Place Bourne, MA 02532 Dear Attorney Buckley: I have received the petition of Rich Saltzberg of the Martha’s Vineyard Times appealing the response of the Barnstable County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Saltzberg requested “any and all incarceration records or transfer records” for an identified individual. Prior Appeal This request has been the subject of a previous appeal. See SPR20/1217 Determination of the Supervisor of Records (August 4, 2020). In my August 4th determination, I found that the Office had not met its burden to withhold the responsive records pursuant to the CORI Act, as it operates through Exemption (a). The Office provided a supplemental response on August 25, 2020, providing additional explanation regarding its Exemption (a) claim. Unsatisfied with this response, Mr. Saltzberg petitioned this office and this appeal, SPR 20/1766, was opened as a result. Current Appeal In its August 25, 2020 response, the Office indicates that it is continuing to withhold 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. 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 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

Donna Buckley, Esq. SPR20/1766 Page 2 October 6, 2020 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 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

Donna Buckley, Esq. SPR20/1766 Page 3 October 6, 2020 include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). In its July 15, 2020 response, the Office states that “incarceration records are considered Criminal Offender Records Information under the said definition in G.L. c. 6 Section 167” and therefore “[t]he records you request are being withheld pursuant to G. L. c. 4, § 7, Twenty-sixth (a).” In a July 24, 2020 letter, the Office states that the requestor “is seeking public disclosure of the incarceration records for a specifically identifiable person. Our records indicate the requested information falls within the definition of CORI.” In its August 25th response, the Office asserts that “in the CORI statute, the Legislature specifically enumerated incarceration, rehabilitation and release records in the definition. The sentence at issue, limiting CORI information to criminal proceedings that were not dismissed prior to arraignment, limits solely criminal proceeding records.” The Office concludes that “[t]he language chosen by the Legislature clearly indicates that incarceration records are their own category of CORI protected records and data.” However, when the Supreme Judicial Court has interpreted the revised definition of CORI, it has not found that the limitations in the statute apply only to certain of the enumerated categories. See Boston Globe Media Partners, LLC v. Dept. of Criminal Justice Information Services, 484 Mass. 279, 284 (2020) (interpreting the definition of CORI in §167 and finding that the limitation “identifies which offenses in a person's criminal history generally may or may not be disseminated as part of the CORI report available through iCORI” and listing examples of such offenses). Therefore, based on the Office’s responses, I find it has not met its burden of specificity to show that the records fall within the definition of CORI. The Office has not demonstrated that the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Accordingly, the Office may not withhold the records pursuant to Exemption (a). Conclusion Accordingly, the Department is ordered to review the records, redact where necessary, and provide the responsive records to Mr. Saltzburg, in a manner consistent with this order, the Public Records Law, and its Regulations within 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.

Donna Buckley, Esq. SPR20/1766 Page 4 October 6, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Rich Saltzberg