Todd Wallack v. Department of Criminal Justice Information Services (SPR 20221817)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 19, 2022 SPR22/1817 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. Previous Appeal This request was the subject of a previous appeal. See SPR22/1538 Determination of the Supervisor of Records (July 19, 2022). In my July 19th determination, I ordered DCJIS to provide Mr. Wallack with a response to his request. On August 4, 2022, DCJIS responded. Unsatisfied with DCJIS’ response, Mr. Wallack petitioned this office and this appeal, SPR22/1817, 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 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. SPR22/1817 Page 2 August 19, 2022 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). Accordingly, Mr. Wallack’s purpose in making the request has no bearing on the public status of any existing responsive records. 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’ August 4th Response In its August 4, 2022 response, DCJIS asserts that the records are exempt under Exemptions (a) and (f) of the Public Records Law. Further, DCJIS states that “there are no portions of records that can be segregated to allow for dissemination of the records.” 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

Agapi Koulouris, Esq. SPR22/1817 Page 3 August 19, 2022 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 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 include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Under Exemption (a), DCJIS argues that:

Agapi Koulouris, Esq. SPR22/1817 Page 4 August 19, 2022 [T]he information contained within a CJIS audit constitutes CORI information as it identifies a specifically named individual along with their identifying information in the CJIS audit response summary. A CJIS audit response includes the date, time, url for the department, and user that queried the subject along with the name, date of birth, PCF number, and message key demonstrating that a subject queried in the CJIS system has a CORI record. PCF numbers are only provided in CJIS queries for individuals with a CORI record. A CJIS audit response may also include a copy of the individual’s full CORI records that contains a summary of court appearances. As such, DCJIS asserts that the data contained within a CJIS audit constitutes CORI information as that term is defined in M.G.L. c. 6, § 167. 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 asserts that: When law enforcement is investigating a subject, the law enforcement officer may run a query of that individual in CJIS by name, license plate or other identifying information. If said records were to be deemed public, an individual that sought to learn whether he or she were under active investigation by a law enforcement entity could simply submit a request for this information. This would effectively impede ongoing investigations, as it would identify the date, time, department and user that queried a subject. For this reason, DCJIS asserts that information contained within a CJIS audit may include queries submitted by law enforcement

Agapi Koulouris, Esq. SPR22/1817 Page 5 August 19, 2022 associated with ongoing investigations that may be compromised, if released. Based on DCJIS’ response, it remains unclear how the requested information constitutes CORI. Nor did DCJIS demonstrate how disclosure of the information or any segregable portion thereof, “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). In camera inspection In the alternative, in order to facilitate my review, DCJIS may provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the records. The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Records Requested in Paragraph 4 DCJIS also states that “DCJIS will work with Mr. Wallack should he seek to amend his request for ‘high-profile individuals.’” This office encourages the parties to communicate to enable Mr. Wallack clarify his records request regarding “high-profile individuals.” See G. L. c. 66, § 10(b)(vii) (an agency or municipality shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably).

Agapi Koulouris, Esq. SPR22/1817 Page 6 August 19, 2022 Conclusion DCJIS is ordered to provide a further response regarding its Exemptions (a) and (f) claims or provide the records for an in camera inspection without delay. Please be advised that, unlike the materials provided for in camera review, any additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack