Din R. Jenkins Sr. v. Stoughton, Town of - Police Department (SPR 20210133)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 4, 2021 SPR21/0133 Chief Donna McNamara Town of Stoughton Police Department 26 Rose Street Stoughton, MA 02072 Dear Chief McNamara: I have received the petition of Din Jenkins appealing the nonresponse of the Town of Stoughton Police Department (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Jenkins requested “copies of all reports, documents, recordings, notes, emails and all other information created due to or used during any investigation that are in my internal affairs files (IA).” Previous appeal This request was the subject of a previous appeal. See SPR20/2348 Determination of the Supervisor of Records (December 14, 2020). In my December 14th determination, I found the Department must clarify what information had been redacted from the report under the heading “CJIS Offline search” and explain how this information falls within the definition of CORI. Further, it was unclear if the Department possesses any additional responsive records, or if such records are being withheld. I also found the Department had met its burden to redact the names of witnesses and complainants from the responsive report pursuant to Exemption (f). The Department was ordered to provide Mr. Jenkins with a response to the request, in a manner consistent with the order, the Public Records Law, and its Regulations. The Department provided said response on December 28, 2020. Unsatisfied with the Department’s response, Mr. Jenkins petitioned this office and this appeal, SPR21/0133, was opened as a result. Current Appeal In its December 28th response, the Department indicates that audio recordings have been withheld pursuant to Exemption (f), as well as provided supplemental information for its 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

Chief Donna McNamara SPR21/0133 Page 2 February 4, 2021 Exemption (a) claim. The Department further indicates that it provided Mr. Jenkins a copy of a responsive audio recording. In his appeal, Mr. Jenkins is appealing the Department’s Exemption (a) and (f) claims. 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 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

Chief Donna McNamara SPR21/0133 Page 3 February 4, 2021 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. In its response, the Department states that “[w]ith respect to the CJIS off-line search for a specifically identified third-party conducted as part of the police investigation, which, as you know was previously redacted from the records provided, such information is governed by the confidentiality requirements in 803 CMR 7.00 as that regulatory provision operates through exemption (a) of the Public Records Law. Specifically, the DCJIS regulations state as follows…” In his appeal petition, Mr. Jenkins contends “[g]iven that this section is merely a summary, it seems unlikely that this contains actual criminal justice information that would be exempt from disclosure…[t]he Department's response is unclear and seems to simply restate the CORI exemption in general rather than sufficiently describing the use of the exemption.” The Department has not met its burden to explain how this information falls within the definition of CORI. Specifically, it is unclear how the “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. The Department must address this issue. 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)(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

Chief Donna McNamara SPR21/0133 Page 4 February 4, 2021 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. Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. In its response, the Department states it “will continue to withhold third-parties audio recordings pursuant to exemption (f)… and redaction is not possible in this instance without revealing the underlying identities of said individuals.” I find that the Department has not established why the recording could not be redacted to preserve the identity of the witness. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Jenkins with a response to the request, provided 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Din Jenkins