Todd Wallack v. Department of Criminal Justice Information Services (SPR 20221538)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 19, 2022 SPR22/1538 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Massachusetts Department of Criminal Justice Information Services (DCJIS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 26, 2022, Mr. Wallack requested: [1] Any data showing the number of times that people with access to the CJIS systems have accessed [a named individual’s] CORI record[;] [2] Any data showing the number of times that people with access to the CJIS systems have accessed [a named individual’s] CORI record[;] [3] Any audits DCJIS has created or received since 2017 on people improperly accessing CORI reports[;] [4] Any statistics DCJIS has compiled since 2017 on people repeatedly accessing CORI reports for high-profile individuals. DCJIS provided responses on May 10, 2022 and July 5, 2022. Unsatisfied with the responses, Mr. Wallack petitioned this office and this appeal, SPR22/1538, was opened as a result. Purpose of request; identity of requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). 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

Agapi Koulouris, Esq. SPR22/1538 Page 2 July 19, 2022 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(d)(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, including the specific exemption or exemptions upon which the withholding is based…”); 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). 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. DCJIS’ July 5th Response In its July 5, 2022 response, DCJIS asserts that the records are exempt under Exemptions (a) and (f) 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 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.”

Agapi Koulouris, Esq. SPR22/1538 Page 3 July 19, 2022 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. Under Exemption (a), DCJIS asserts that “[i]nformation contained within an audit of the Criminal Justice Information System (CJIS) is exempt from public disclosure under the provisions of M.G.L. c. 4, § 7 clause 26(a), M.G.L. c. 6, § 172, 28 CFR 20.33 and 18 USC 2721. A CJIS audit contains information that is considered Criminal Offender Record Information, Criminal History Record Information and/or Driver’s License or History information that is exempt under the aforementioned statutes.” 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 prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y 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 289-290. Under Exemption (f), DCJIS states that it is a statutorily mandated agency in the Commonwealth authorized “. . . to manage and maintain the Criminal Justice Information System (CJIS), an automated system that provides critical criminal justice-related data, such as criminal records (including arrest records), wanted and missing person information, and restraining orders, to law enforcement across the state and around the country, twenty-four hours a day, seven days a week.” See G. L. c. 6, § 168 and G. L. c. 6A, § 18¾. DCJIS explains that it “. . . is also the FBI designated CJIS Systems Agency (CSA) for Massachusetts, that is, the criminal justice agency with overall responsibility for the

Agapi Koulouris, Esq. SPR22/1538 Page 4 July 19, 2022 administration and usage of CJIS within a state.” As a result, DCJIS states that it “. . . is subject to federal laws and regulations and, . . . is required to enforce FBI policies regarding monitoring system use, enforcing system discipline and security, and assuring that all users follow operating procedures. . . .” Further, DCJIS explains that it “. . . has an audit function that is used as an investigatory tool by law enforcement.” DCJIS explains that “. . . the audit documents contain highly sensitive and confidential information[,]” hence, disclosure of these records, whose security is DCJIS’s statutory responsibility, would not only “. . . reveal the existence of any ongoing confidential, criminal investigations and could potentially compromise them[,]” but also, “. . . set a dangerous precedent and would compromise all potential criminal investigations in the Commonwealth.” Additionally, DCJIS explains that where “[q]ueries of motor vehicle registrations are conducted by law enforcement officers and criminal justice agencies for numerous reasons including criminal investigations of which the subject is unaware[,] . . .[d]isclosure of these audits would clearly prejudice ongoing and future investigative efforts by law enforcement. An individual who wants to know whether he or she is under investigation could do so simply by making a public records request from DCJIS.” Accordingly, DCJIS contends that “. . . the records requested clearly fall into the category 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’ and should be withheld pursuant to [Exemption (f)].” Based on DCJIS’ response, it is unclear how the requested information constitutes CORI that can be withheld under Exemption (a). Specifically, DCJIS 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. Additionally, DCJIS has not demonstrated how disclosure of the information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required to withhold records under Exemption (f). Further, I find DCJIS must clarify whether segregable portions can be provided. See Reinstein, 378 Mass. at 289-90 (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). Records Requested in Paragraph 4 DCJIS also states that “[i]n response to the records requested in paragraph 4, DCJIS does not possess reports that specifically refer to CJIS queries submitted for ‘high-profile individuals.’” In his petition, Mr. Wallack contends that “[t]he state said it didn’t use the term ‘high-profile individuals,’ but acknowledged it has conducted such audits[.]” Based on the foregoing, it is unclear if DCJIS possesses records that may be responsive to the request.

Agapi Koulouris, Esq. SPR22/1538 Page 5 July 19, 2022 This office encourages Mr. Wallack and DCJIS to communicate to facilitate providing responsive records if they exist. In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). Conclusion Accordingly, DCJIS is ordered to provide Mr. Wallack 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, Manza Arthur Supervisor of Records cc: Todd Wallack