Sarah E. Crossen v. Framingham, City of - Police Department (SPR 20240944)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 10, 2024 SPR24/0944 Kristin Sullivan Records Manager Framingham Police Department 150 Concord Street Framingham, MA 01702 Dear Ms. Sullivan: I have received the petition of Sarah E. Crossen, Esq., of Meehan, Boyle, Black & Bogdanow, P.C., appealing the response of the Framingham 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 February 28, 2024, Attorney Crossen requested: …a complete copy of any and all investigative materials related to … a May 15, 2023 motor-vehicle incident that occurred at the intersection of Beacon street and Fairbanks street in Framingham, Massachusetts around 11:30 p.m. . . . including but not limited to any photos, videos, statements, recordings, transcripts, notes, documents, reports, materials, diagrams, renderings, data, 911 recordings, and audio files…We respectfully request that you provide the updated Police Report related to this incident, the associated Warning, as well as any other documents responsive to this request. The Department provided a response on March 11, 2024. Unsatisfied with the Department’s response, Attorney Crossen petitioned this office and this appeal, SPR24/0944, 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). 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

Kristin Sullivan SPR24/0944 Page 2 April 10, 2024 It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. See 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. 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 March 11th response In its March 11, 2024 response, the Department provided a document with redactions and stated that other records were withheld pursuant to Exemption (a) of the Public Records Law. 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.

Kristin Sullivan SPR24/0944 Page 3 April 10, 2024 Criminal Offender Record Information (CORI) 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. In its response, the Department states: You do not represent a party that was issued the [civil warning] [therefore] I cannot release that to you under public records law as they are considered CORI information. …The [Department] must deny your request on the grounds that the requested records would violate… [CORI]. The CORI statute imposes restrictions on the dissemination of records which were compiled by the Department concerning an identifiable individual which relate to the nature of disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Therefore, these records are being withheld pursuant to Exemption (a) of the Public Records Law. This exemption allows for the withholding of records which are “specifically or by necessary implication exempted from disclosure by statute.” G.L. c. 4, § 7(26)(a). … The Department of Criminal Justice Information Services (DCJIS) provides public access to certain criminal records. You may be able to obtain some of what you are seeking through the iCORI program.

Kristin Sullivan SPR24/0944 Page 4 April 10, 2024 In her appeal petition, Attorney Crossen contends: [The Department] has denied my request on the grounds that the aforementioned [c]ivil [w]arning is protected by the Criminal Offender Record Information Act (CORI), despite the fact that it is not a criminal record and CORI has no bearing on its disclosure…. Based on the Department’s response, I find that while portions of the withheld record may fall within the definition of CORI, the Department has not met its burden to show that the record falls within the CORI Act. Specifically, the Department has not demonstrated that all of the withheld record constitutes “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 record in its entirety pursuant to Exemption (a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 291, 289-90 (1989) (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). Further, in her appeal petition, Attorney Crossen contends: …[the Department] has only provided a heavily redacted police report, in which substantive parts of the officer’s narrative are redacted including two complete sentences and what appears to [be] the justification as to why [an identified individual] was not allowed to drive his car from the scene. . . These redactions appear to go far beyond personal information related to a privacy interest. The Department’s March 11, 2024 response did not contain the specificity required in a denial of access to public records. The Department redacted portions of the record without claiming any exemption(s) in the Public Records Law that would support the redacting of the responsive records. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Consequently, the Department must identify an exemption and explain with specificity how that the exemption applies to withhold portions of the records from disclosure. G. L. c. 66, § 10(b). Finally, in her appeal petition, Attorney Crossen stated that “[the Department] provided no other responsive materials, including no body camera footage or 911 call log.” In its March 11, 2024 response, the Department asserted “[the Department] was unable to locate a 911 recording.” Based upon a telephone conference between a staff attorney of the Public Records Division and a representative of the Department, the Department confirmed that all responsive records, other than the withheld civil warning, have been provided. The Department further

Kristin Sullivan SPR24/0944 Page 5 April 10, 2024 noted that a two year history of 911 call logs are publically available and downloadable from the Department’s website. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Att’y Gen. 157, 165 (May 18, 1977). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Department is ordered to provide Attorney Crossen 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. Attorney Crossen may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Sarah Crossen, Esq.