Din R. Jenkins Sr. v. Stoughton, Town of - Police Department (SPR 20211811)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 5, 2021 SPR21/1811 Chief Donna McNamara Stoughton Police Department 32 Rose Street Stoughton, MA 02072 Dear Chief McNamara: I have received the petition of Din R. Jenkins, Sr. appealing the response of the 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 a certain internal affairs file. Previous appeals This request was the subject of previous appeals. See SPR20/2348 Determination of the Supervisor of Records (December 14, 2020); SPR21/0133 Determination of the Supervisor of Records (February 4, 2021); SPR21/1227 Determination of the Supervisor of Records (May 27, 2021 and June 28, 2021). The Department responded on July 6, 2021. Unsatisfied with the response, Mr. Jenkins appealed and SPR21/1811 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

Chief Donna McNamara SPR21/1811 Page 2 August 5, 2021 The Department’s July 6th response In its July 6th response, the Department states the requested record cannot be provided pursuant to 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 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Department stated, “… after a careful individualized review by the Department, the dissemination of DCJIS report without redactions cannot be provided in response to this public records request.” Under Exemption (a) the Department cited the CJIS Regulations, 803 CMR 7.00, which states in pertinent part as follows: (1) CJIS shall not be accessed or used for any purpose other than an authorized criminal justice purpose. (2) CJIS shall only be accessed or used and CJIS information shall only be disseminated for authorized criminal justice purposes as defined in 803 CMR 7.02. Such purposes may include but are not limited to the following where they otherwise meet the definition of authorized criminal justice purposes provided in 803 CMR 7.02: (a) criminal investigations, including motor vehicle and driver's checks; (b) criminal justice employment;

Chief Donna McNamara SPR21/1811 Page 3 August 5, 2021 (c) arrests or custodial purposes; (d) civilian employment or licensing purposes as authorized by law and approved by the FBI; (e) determining the status of a court case for purposes of responding to a public records request; and (f) research conducted by a CJA. 803 CMR 7.09 (1) CORI may be provided to another criminal justice agency for authorized criminal justice purposes. (2) A CJA with official responsibility for a pending criminal investigation or prosecution may disseminate CORI that is specifically related to and contemporaneous with such investigation or prosecution. 803 CMR 7.10 Upon review, the Department has not demonstrated that the requested record constitutes a type of record that can be withheld pursuant to the cited regulations. The Department must clarify this issue. 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 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Din R. Jenkins, Sr.