Todd Wallack v. Cambridge, City of - Office of the City Solicitor (SPR 20240540)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 5, 2024 SPR24/0540 Seah Levy Public Records Access Officer City of Cambridge 795 Massachusetts Avenue Cambridge, MA 02139 Dear Ms. Levy: I have received the petition of Todd Wallack, of WBUR, appealing the response of the City of Cambridge (City) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2024, Mr. Wallack requested, “[a]ny applications for criminal complaints for sexual conduct for a fee filed with Cambridge District Court since Nov. 1, 2023 and referenced in the US District Attorney statement on Dec. 19, 2023. The statement says there are 28 such documents.” Prior Appeal The requested records were the subject of a prior appeal. See SPR24/0241 Determination of the Supervisor of Records (February 7, 2024). In my February 7th determination, I learned that the City provided a further response to Mr. Wallack on February 5, 2024. Unsatisfied with the City’s February 5th response, Mr. Wallack petitioned this office and this appeal, SPR24/0540, 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. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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

Seah Levy SPR24/0540 Page 2 March 5, 2024 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 City’s February 5th Response In its February 5, 2024 response, the City cited Exemption (f) of the Public Records Law, as well as the Criminal Offender Record Information (CORI) Act and G. L. c. 214, § 1B, to withhold the responsive 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, 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. Under Exemption (a), the City stated: The information sought falls under the definition of “Criminal offender record information” (CORI), which is defined in M.G.L. c. 6, §167 as, “records and data in any communicable form complied 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…”

Seah Levy SPR24/0540 Page 3 March 5, 2024 A “criminal justice agency” is defined as “those agencies at all levels of government which perform as their principal function, activities related to …(a) crime prevention …, (b) the apprehension, prosecution, adjudication, incarceration, or rehabilitation of criminal offenders…” Id. Therefore, where the Cambridge Police Department is a “criminal justice agency,” it is prohibited from releasing the records sought by the Requestor. Further, even if the records sought were not CORI, the City denied the request Pursuant to M.G.L. c. 214, §1B. Specifically, the Clerk-Magistrate declined to release the applications for criminal complaint finding that “the disclosure of extraneous personal information could create collateral consequences for the individuals involved, and gratuitously expose non-public information that would otherwise remain private for those persons for whom no probable cause is established.” See, docket entry #47, Trustees of Boston University and Boston Globe Media Partnership LLC v. Clerk-Magistrate of the Cambridge District Court. Justice Gaziano found that the Clerk-Magistrate’s finding was not an abuse of discretion or error of law. G. L. c. 214, § 1B provides in pertinent part: A person shall have a right against unreasonable, substantial or serious interference with his privacy. The superior court shall have jurisdiction in equity to enforce such right and in connection therewith to award damages. G. L. c. 214, § 1B. This statute does not specifically, nor by implication, exempt any particular records from disclosure; therefore, this statute does not operate under Exemption (a) for the withholding of records responsive to this request. See Cape Cod Times v. Sheriff of Barnstable Cty., 443 Mass. 587, 595 (2005) (explaining G. L. c. 214, § 1B provides no alternative legal basis to resist inspection of requested materials). The City also cited the Criminal Offender Record Information (CORI) Act, which is defined 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

Seah Levy SPR24/0540 Page 4 March 5, 2024 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. Based on the foregoing, I find the City has not met its burden to demonstrate how the requested records are exempt under the CORI Act. Specifically, it is unclear how these records contain “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167 (emphasis added). The City must clarify this matter. 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 289-90. In its response, the City stated, “[a]pplications for criminal complaint are pending before the Clerk Magistrate of the Cambridge District Court for the accused in the requested reports and a clerk’s hearing to determine whether there is probable cause to issue a criminal complaint has not yet taken place. See, Trustees of Boston University and Boston Globe Media Partnership LLC v. Clerk-Magistrate of the Cambridge District Court (attached).” Although the City claims it has applications for criminal complaint pending before the Cambridge District Court regarding the requested records, it is unclear how many applications are pending and how Exemption (f) applies to withhold the records in their entirety. It is uncertain from the City’s response whether the records contain confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The City did not

Seah Levy SPR24/0540 Page 5 March 5, 2024 demonstrate how disclosure of any segregable portion of the records “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required 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). As a result, I find that the City did not meet its burden of specificity in claiming Exemptions (a) and (f) of the Public Records Law to withhold the records in their entirety. Conclusion Accordingly, the City 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 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. Mr. Wallack may appeal the substantive nature of the City’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Todd Wallack