Todd Wallack v. Department of Criminal Justice Information Services (SPR 20230938)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2023 SPR23/0938 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), SPR22/2942 Determination of the Supervisor of Records (January 9, 2023), and SPR23/0375 Determination of the Supervisor of Records (March 10, 2023). In my March 10th determination, I ordered DCJIS to provide a response to the request. On May 9, 2023, DCJIS provided a response. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR23/0938, 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. SPR23/0938 Page 2 May 23, 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’ May 9th Response In its May 9, 2023 response, DCJIS states: DCJIS responded to your public records request on July 5, 2022, August 4, 2022, December 22, 2022 and February 23, 2023. In summary DCJIS asserted in its responses that the requested records are exempt from public disclosure pursuant to the provisions of 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 Police. Subsequently, you submitted appeals of these responses and on October 7, 2022, DCJIS held an in camera inspection discussion with the Supervisor of Public Records concerning this request.

Agapi Koulouris, Esq. SPR23/0938 Page 3 May 23, 2023 In each response, DCJIS has fully articulated its reasoning for seeking the exemption of said records from the public records law. Furthermore, in its February 23, 2023 response it respectfully requested a further in camera review and discussion of this request with the Supervisor of Public Records. To date, DCJIS has not received a reply to this part of its response. As such, DCJIS restates its previous request for a further in camera review and discussion of this matter with the Supervisor of Public 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 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

Agapi Koulouris, Esq. SPR23/0938 Page 4 May 23, 2023 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. 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. Based upon DCJIS’ May 9th response, I find DCJIS has not demonstrated that the requested records can be withheld in their entirety under Exemptions (a) and (f). It remains unclear how the requested information, in its 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

Agapi Koulouris, Esq. SPR23/0938 Page 5 May 23, 2023 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). In camera inspection In order to facilitate my review, DCJIS must provide this office with un-redacted copies of the responsive records for in camera inspection. See 950 C.M.R. 32.08(4). The responsive records should not include the records that have previously been provided for an in camera inspection. These previous records included a sample CORI test record as well as sample FBI records. For the previous in camera review, DCJIS provided a copy of a blank CJIS audit log. For this in camera review, DCJIS shall provide populated CJIS audit logs responsive to Mr. Wallack’s request. 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. Conclusion DCJIS is ordered to 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

Agapi Koulouris, Esq. SPR23/0938 Page 6 May 23, 2023 disclosure as a public record. Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack