Allison Jarmanning v. Plymouth County Sheriff's Office (SPR 20231819)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 21, 2023 SPR23/1819 Patrick C. Lee, Esq. General Counsel Plymouth County Sheriff’s Office 24 Long Pond Road Plymouth, MA 02360 Dear Attorney Lee: I have received the petition of Allison Jarmanning, of WBUR, appealing the response of the Plymouth County Sheriff’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 3, 2023, Ms. Jarmanning requested, “... a copy of the booking photo for [identified individual] along with any booking paperwork that can be released.” The Office responded on August 4, 2023. Unsatisfied with the response, Ms. Jarmanning petitioned this office and this appeal, SPR23/1819, 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) (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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Patrick C. Lee, Esq. SPR23/1819 Page 2 August 21, 2023 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. The Office’s August 4th Response In the Office’s August 4, 2023 response, the Office stated, “...the Office does not have a record of this person being admitted to our facility.” The Office further stated, “[t]he Department respectfully declines to produce the photo or records related to the person’s booking at the local police station.” The Office cited Exemption (a) of the Public Records Law to withhold the requested records in its entirety. Current Appeal In her appeal, Ms. Jarmanning asserts, “the [identified individual] is a Hull police ... who was arrested July 24 by the Pembroke police. Booking photos for police officers charged with alleged crimes are public under Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services (2020).” 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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.

Patrick C. Lee, Esq. SPR23/1819 Page 3 August 21, 2023 In its response, the Office cited Criminal Offender Record Information (CORI) which states in pertinent part as follows: [R]ecords 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 not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its response, the Office stated, “[b]ooking photos and records are criminal offender record information (CORI) exempt from disclosure by statute. G.L. c. 4 §7 cl. Twenty-sixth (a) and c. 6 § 172. The legislature has chosen to use very broad language to define CORI: ‘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 …’ G.L. c. 6 §167. G.L. c. 6 §172 limits dissemination of such material to criminal justice agencies and such other agencies or individuals authorized by statute to receive it. Your request for a booking photo and booking records regarding a named individual seeks such CORI, and the Department is prohibited from disseminating such records under pains and penalties of civil or criminal action.” Based on the foregoing, I find the Office has not met its burden to demonstrate how the requested records are exempt under the CORI Act. Specifically, it is unclear how these records constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167 (emphasis added). Conclusion Accordingly, the Office is ordered to provide Ms. Jarmanning with a response to her request in a manner consistent with 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 the response to this office at pre@sec.state.ma.us. Ms. Jarmanning may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1).

Patrick C. Lee, Esq. SPR23/1819 Page 4 August 21, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Allison Jarmanning