Paul Benson v. Provincetown, Town of- Police Department (SPR 20240731)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 29, 2024 SPR24/0731 Barbara Peters Records Clerk Provincetown Police Department 26 Shank Painter Road Provincetown, MA 02657 Dear Ms. Peters: I have received the petition of Paul Benson, of the Provincetown Independent, appealing the response of the Provincetown 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 14, 2023, Mr. Benson requested, “… any police reports involving [an identified individual] since my last request on July 8 and also any police reports involving [an identified individual] at any time since January 2017.” Prior Appeals and In Camera Review The requested records were the subject of prior appeals and an in camera review. See SPR23/2445 Determination of the Supervisor of Records (October 30, 2023); SPR23/2829 Determinations of the Supervisor of Records (December 5, 2023 and December 27, 2023); and SPR24/0253 Determination of the Supervisor of Records (February 9, 2024). In my February 9th determination, I found that the requested records do not fall within the definition of the Criminal Offender Records Informaiton (“CORI”) Act. On February 26, 2024, the Department provided a response. Unsatisfied with the response, Mr. Benson petitioned this office and this appeal, SPR24/0731, 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 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

Barbara Peters SPR24/0731 Page 2 March 29, 2024 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 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. The Department’s February 26th Response In its February 26, 2024 response, the Department provided redacted records, and cited the Criminal Offender Record Information statute, as it operates through Exmeption (a) of the Public Records Law in support of the redactions. 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. The updated definition of Criminal Offender Record Information states in relevant part:

Barbara Peters SPR24/0731 Page 3 March 29, 2024 [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 (emphasis added). In its reponse, the Department stated: ...the redacted information in the arrest report constitutes records and factual statements compiled by the Provincetown Police Department and which concern an identifiable individual and related to criminal charges and arrest. Where those criminal proceedings remain open in the Orleans District Court ... it remains plain that the criminal charges against him ‘have not been dismissed before arraignment,’ and therefore, fall squarely within the defninition of CORI, G.L. c. 6, § 167... it is the Department’s position that this information is protected from disclosure under the CORI statute, through the operation of Exemption (a). In my prior in camera review, I found that the requested records do not fall within the definition of CORI. Specifically, the Department has not demonstrated that all of the redacted records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Therefore, the Department may not withhold the records pursuant to Exemption (a) and CORI. 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). See G. L. c. 41, § 98F (“names, addresses of persons arrested and the charges against such persons ... shall ... be public records . . .”). Conclusion Accordingly, the Department is ordered to provide Mr. Benson with a response 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. Benson may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Barbara Peters SPR24/0731 Page 4 March 29, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Paul Benson