Bera Dunau v. Hampshire County Sheriff's Department (SPR 20221515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2022 SPR22/1515 Thomas Mitchell Records Access Officer Hampshire County Sheriff’s Office 205 Rocky Hill Road Northampton, MA 01061 Dear Mr. Mitchell: I have received the petition of Bera Dunau, of the Daily Hampshire Gazette, appealing the response of the Hampshire 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). On June 23, 2022, Mr. Dunau requested “any documents detailing the total number of days each inmate has been held at the Hampshire County Jail in pre-trial detention during the period from Jan. 1 2017 to June 23, 2022, including the case numbers and the names of those detained.” The Office responded on June 28, 2022, providing records in redacted form. Unsatisfied with the Office’s response, Mr. Dunau appealed, and this case 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 agency or municipality 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. Att’y 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

Thomas Mitchell SPR22/1515 Page 2 July 15, 2022 The Office’s June 28th Response In its June 28, 2022 response, the Office cites Exemption (a) of the Public Records Law and CORI for redacting “the identities of the pretrial detainees and their case numbers.” See G. L. c. 4, § 7(26)(a); G. L. c. 6, § 167. 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 Att’y 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. Criminal Offender Record Information (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

Thomas Mitchell SPR22/1515 Page 3 July 15, 2022 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Under Exemption (a) and CORI, the Office argues the following: The identities of pre-trial detainees are CORI because the (1) “concern an identifiable individual”, (2) “relate to the nature or disposition of a criminal charge, an arrest” a sentence, or release; (3) are “recorded in criminal proceedings that are not dismissed before arraignment” -- in other words, in a criminal proceeding where the defendant was arraigned; (4) concern criminal offenses committed by a person who is eighteen years of age or older or where a juvenile was adjudicated as an adult; and (5) concern offenses that are punishable by incarceration. . . . Likewise, the case numbers of each pre-trial detainee are also CORI because their disclosure would lead ineluctably to the disclosure of their identities through a case number record check or the Clerk of the Court’s Office. Based on the Office’s response, I find that the Office has not met its burden to redact the names and case numbers under Exemption (a) and CORI. Specifically, it is not clear how the names and case numbers constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. Further, it is unclear how the records in question would not constitute the sort of “police daily logs, arrest registers, or other similar records compiled chronologically” described in G. L. c. 6, § 172(m). The Office must clarify

Thomas Mitchell SPR22/1515 Page 4 July 15, 2022 these matters. Conclusion Accordingly, the Office is ordered to provide Mr. Dunau with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Bera Dunau