Todd Wallack v. Department of Criminal Justice Information Services (SPR 20230375)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 10, 2023 SPR23/0375 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 Appeals; in camera review This request was the subject of previous appeals and a subsequent in camera review. See SPR22/1538 Determination of the Supervisor of Records (July 19, 2022), SPR22/1817 Determinations of the Supervisor of Records (August 19, 2022; November 7, 2022), and SPR22/2942 Determination of the Supervisor of Records (January 9, 2023). In my January 9th determination, I ordered DCJIS to provide a response to the request. On February 23, 2023, DCJIS provided a response. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR23/0375, was opened as a result. 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. SPR23/0375 Page 2 March 10, 2023 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). 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’ February 23rd Response In its February 23, 2023 response, DCJIS argues: DCJIS respectfully requests that the Supervisor consider all information provided by DCJIS in its response dated July 5, 2022, August 4, 2022, the in-camera discussion on October 7, 2022 and the detailed response dated December 22, 2022 with sample records. DCJIS asserts that this information clearly demonstrates that the requested records are exempt from disclosure under the public records law pursuant to M.G.L. c. 4, §7 clause 26(a) and (f), M.G.L. c. 6, § 172, 28 CFR 20.33, 18 USC 2721 and the FBI CJIS Security Policy….

Agapi Koulouris, Esq. SPR23/0375 Page 3 March 10, 2023 Respectfully, DCJIS requests that the Supervisor reconsider its position that CJIS audit records can be disclosed in a segregable form. DCJIS submits the following examples illustrating how it is not possible to segregate the requested records to redact CORI, Registry of Motor Vehicle or investigatory information: [1] A request is made for inquiries in the CJIS for a named individual. The results identify that the named subject has a CORI record in the system. Assuming arguendo, the DCJIS redacts the name of the subject and includes the remaining details, where the request has been made by the subject’s name the requestor would know the subject has a CORI record and possibly the details of that record in violation of M.G.L. c. 6, § 172. [2] A request is made for a subject by name. The results show the queries were submitted in the system for the driver’s license and driving history. Assuming arguendo that DCJIS redacts the name and provides this information, DCJIS would be revealing confidential driver’s history or license information for a named person in violation of 18 USC 2721 because the requestor knows the identity of the information that has been redacted. [3] A request is made for a named subject in the CJIS system by name or license plate. Said queries were submitted by the agency pursuant to an active investigation. Assuming arguendo, that DCJIS redacts the name or plate, DCJIS would still potentially be interfering or compromising an investigation by disseminating the fact that this information was processed by said criminal justice agency on that date and time. 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

Agapi Koulouris, Esq. SPR23/0375 Page 4 March 10, 2023 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 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. 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.

Agapi Koulouris, Esq. SPR23/0375 Page 5 March 10, 2023 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. Current Appeal In his appeal, Mr. Wallack argues, “the state has previously released this information [regarding Request #1] as part of an audit done by the State Auditor’s office in 2009 that found law enforcement authorities were routinely and improperly accessing CORI systems, including to look at public figures like [a named individual]. I am simply seeking updated statistics….It is worth noting no one was prosecuted or even accused of violating the CORI laws in 2009 for releasing the data. So the department’s argument that it would be illegal to release the data now appears dubious. It also seems dubious that releasing data on improper use of the CORI system would endanger any investigations.” Mr. Wallack further argues, regarding Request # 2, “MGL ch. 6 §175 says individuals should have the right to inspect any information from the department in their CORI database that refers to the person. In that case, that is me, which contradicts the department’s contention that providing me with the data would violate state law. Nor did the department cite any statute that specifically bars the department from releasing the number of times a name has been searched. Nor would it violate exemption (f) because the department has not claimed there is any active investigation into this specific individual (me), let alone explained how releasing that singular data point would somehow jeopardize such an investigation.” Regarding Request # 3, Mr. Wallack asserts, “I am not seeking confidential information about individuals’ criminal records. I am only seeking information about misuse of the CORI system.” Based upon DCJIS’ February 23rd response, I find DCJIS has not demonstrated that the records can be withheld in their entirety under Exemptions (a) and (f). It remains unclear how the requested information, in their entirety, constitutes CORI. Further, DCJIS has not demonstrated 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). 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).

Agapi Koulouris, Esq. SPR23/0375 Page 6 March 10, 2023 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