Blue POV v. Lynn, City of - Police Department (SPR 20232830)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 6, 2023 SPR23/2830 Paul A. Cotter Administrative Services Records Division Lynn Police Department 300 Washington Street Lynn, MA 01902 Dear Lieutenant Cotter: I have received the petition of Blue POV appealing the response of the Lynn 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 September 24, 2023, the requestor sought records related to a specific arrest that occurred on February 4, 2022. Previous appeals This request was the subject of previous appeals. See SPR23/2294 Determination of the Supervisor of Records (October 10, 2023) and SPR23/2459 Determination of the Supervisor of Records (October 30, 2023). In the October 30th determination, I ordered the Department to clarify whether its prior response was intended to be a fee estimate. The Department provided a response on November 9, 2023. Unsatisfied with the Department’s response, the requestor petitioned this office and this appeal, SPR23/2830, 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); 950 C.M.R. 32.06(3); see also Dist. 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

Paul A. Cotter SPR23/2830 Page 2 December 6, 2023 Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 9th response In its November 9, 2023 response, the Department cites Exemptions (a) and (f) of the Public Records Law to withhold the responsive records. G. L. c. 4, § 7(26)(a), (f). 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. Under Exemption (a), the Department cites the Criminal Offender Record Information (“CORI”) Act to withhold the requested records.

Paul A. Cotter SPR23/2830 Page 3 December 6, 2023 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. Citing CORI, the Department states the following: The police report as well as the officer’s BWC video(s) for this particular matter does in fact identify a 27-year old (at the time of arrest) individual. . . . And the recording(s) as well as the officer’s arrest report does in fact relate to both the nature of a criminal charge as well as an arrest for an offense (OUI-Alcohol), which is punishable by incarceration. Additionally, it is also important to point out that after reviewing [named individual]’s criminal history, I can also confirm to your office that the OUI- Alcohol charge that was brought forth by the Lynn Police Department was not dismissed prior to arraignment. [Named individual] was arraigned at Lynn District Court on February 7, 2022, and the case was later finally dismissed on February 9, 2023. Upon review, I find the Department has not met its burden to withhold the responsive records under CORI. Specifically, the Department has not demonstrated that the withheld records constitute “information recorded in criminal proceedings that are not dismissed before

Paul A. Cotter SPR23/2830 Page 4 December 6, 2023 arraignment” as defined in G. L. c. 6, § 167. The Department must clarify. 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 v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). 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. Citing Exemption (f), the Department states that “[t]his exemption applies to records pertaining to a criminal prosecution of a defendant charged with a crime, as was the case here where [a named individual] was arrested for OUI-Alcohol.” Based on the Department’s response, it is unclear how the records in their entirety can be withheld under Exemption (f). It is further unclear from the Department’s response whether the record contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. 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). Conclusion Accordingly, the Department is ordered to provide the requestor 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.

Paul A. Cotter SPR23/2830 Page 5 December 6, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Blue POV