Keith Lyons v. Littleton, Town of - Police Department (SPR 20232816)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 5, 2023 SPR23/2816 Matthew Pinard Chief of Police Littleton Police Department 500 Great Road Littleton, MA 021460 Dear Chief Pinard: I have received the petition of Keith Lyons appealing the response of the Littleton Police Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 29, 2023, Mr. Lyons requested: [1.] [A]ny log entries and written recording of BT entries [2.] [A]ll print out and signed copies regarding BT machines… [3.] [A]ny supplemental reports by all officers by [the Department] and BPD related to this case [4.] Understanding of why report was modified by 26DL . . . 10 days after the report was written and not by arresting officer[.] The Department provided a response on November 2, 2023. Unsatisfied with the Department’s response, Mr. Lyons petitioned this office and this appeal, SPR23/2816, 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(d)(iv) (written response must “identify 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

Chief Matthew Pinard SPR23/2816 Page 2 December 5, 2023 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). 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 Department’s November 2nd Response In its November 2, 2023 response, the Department cited the Criminal Offender Record Information (CORI) Act, to withhold records. The Department stated, “[t]he requested record falls within the definition of CORI because it concerns an identifiable individual and relates to the nature of a criminal charge and arrest. Accordingly, this record is not obtainable by persons other than those specifically listed in Section 172, and the Littleton Police Department is prohibited by law from producing it to you. Consequently, the record is exempt from disclosure under the Public Records Law pursuant to exemption (a)…” Subsequent to the opening of this appeal, the Department sent a response on November 27, 2023, and further explained: The records that Mr. Lyons is seeking are documents that were created in connection with the arrest of a private individual. These records contain a significant amount of sensitive information relating to this arrest and corresponding criminal charges, including chemical test results. As such, these records “concern an identifiable individual and relate to the nature or disposition of a criminal charge [and] an arrest,” and are thereby protected from disclosure under M.G.L. c. 6, § 172. To [the Department]’s knowledge, Mr. Lyons does not fall within one of the exceptions to the statute that would permit the release of these records to him. Therefore, the Town has withheld these records in accordance with Exemption (a) of the Public Records Law. Current appeal In his appeal, Mr. Lyons stated, “I had originally requested a copy of the IA that was performed but neither [the Department] nor Boxborough have it so I have been asking for everything they have. [The Department] claims to not be able to provide the additional information associated with the case…” In response to the Department’s November 27th correspondence, Mr. Lyons states, “I don’t care if the criminal offender’s info is redacted… My request is seeking as much information as is available on the case since [the Department] could not produce the IA’s…”

Chief Matthew Pinard SPR23/2816 Page 3 December 5, 2023 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. 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

Chief Matthew Pinard SPR23/2816 Page 4 December 5, 2023 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Based on the Department’s response, it is unclear how the records requested by Mr. Lyons fall within the definition of CORI. Specifically, it is not clear how the records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. Further, it is unclear how portions of the records in question would not constitute the sort of “police daily logs, arrest registers, or other similar records compiled chronologically” described in G. L. c. 6, § 172(m). Further, it is unclear what specific records the Department is withholding. See G. L. c. 66, § 10(b)(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Additionally, it is unclear how the records can be withheld in their entirety. The Department must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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). The Department must clarify these matters.

Chief Matthew Pinard SPR23/2816 Page 5 December 5, 2023 Conclusion Accordingly, the Department is ordered to provide Mr. Lyons 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Keith Lyons