Mark Hourihan v. Bernardston, Town of - Police Department (SPR 20241211)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 6, 2024 SPR24/1211 Chief James E. Palmeri Bernardston Police Department 256 South Street Bernardston, MA 01337 Dear Chief Palmeri: I have received the petition of Mark Hourihan, of Live Boston News, appealing the response of the Bernardston 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 April 9, 2024, Mr. Hourihan requested, “body worn camera footage from the arrest on April 5, 2024 resulted in the seizure of 109 grams of crack cocaine, 16 grams of powder cocaine, heroin, 12 methadone pills and 4 Clorzepam pills…” The Department provided a response on April 22, 2024. Unsatisfied with the Department’s response, Mr. Hourihan petitioned this office and this appeal, SPR24/1211, 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 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). 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 James E. Palmeri SPR24/1211 Page 2 May 6, 2024 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 April 22nd Response In its April 22, 2024 response, the Department cited the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a), and Exemption (f) of the Public Records Law, to withhold records. When citing these exemptions, the Department stated the following: All video, reports, photos etc have been provided to the District Attorney’s office as evidence to assist in further prosecution of the alleged crimes involved. Releasing such records/video may not only prejudice the Commonwealths case but also the defense, especially in their ability to pick a fair and impartial jury. It is always a possibility that evidence, in this case audio/video/written reports etc. may ultimately be excluded from trial and not part of any public court proceedings. In any criminal case a person is arrested or charged for crimes that occurred pre- arrest, during the arrest, post arrest or pre-application for complaint. The charging of a crime does not legally happen until a clerk reviews documents submitted to them in an application for complaint. That can occur before or after a physical arrest (summons vs arrest). All information recorded road side, transport, or during booking etc is relevant to the litigation as it directly shows the defendants actions, demeanor, clothing if applicable to identity, etc. The police department is not and legally cannot be a judge as to what information is or is not relevant to a criminal proceeding and in fact make every effort to include as much relevant information as possible. (failure to disclose relevant information is in direct violation of Brady v. Maryland, decided in 1963). It is presumed the legislature, when creating the most recent records law, took previous legal standing into consideration. Therefore, where the department is not the determining factor as to what is or is not relevant, or what will or will not affect a constitutionally valid prosecution, these records should not be released at all let alone in a redacted format. If it were to be redacted, it would need to be entirely, absent punctuation. These records may, at their discretion, be released by the clerk’s office or the District Attorney’s office. The clerk’s office, bound by their own rules and regulations is independent of the Police and the District Attorney. The District Attorney is in charge of the prosecution and can therefore determine if release of such information would jeopardize the prosecution of a criminal matter or interfere with a defendant’s rights under the US constitution and the Massachusetts declaration of independence. However, should the police department release such information, viewed as unfavorable to the defendant; this

Chief James E. Palmeri SPR24/1211 Page 3 May 6, 2024 matter would be ripe for a motion to dismiss based on government misconduct. Further, by definition, any pending criminal case could be viewed as a violation of CORI as it relates to a person’s criminal charges, the disposition of which is yet to be determined. Current appeal In his appeal, Mr. Hourihan states: [the Department] made reference to these records, which were created by the police department prior to any court proceedings, as CORI protected, which we interpret as exemption ‘a’ under a statutory exemption. It is the belief of our organization that the requested records should not be denied under either exemption ‘f’ or ‘a’… Under the two categories of exempt records in exemption ‘a’, we recognize and respect that Criminal Offender Record Information (C.O.R.I.) can sometimes be exempt however, The Department of Criminal Justice Information Services, conferred with the authority to promulgate and interpret statutes and regulations regarding C.O.R.I., and interprets the “initiation of criminal proceedings” to be “the point when a criminal investigation is sufficiently complete...” as when said records may become exempt however we are only seeking the BWC footage not any court records or other documents. In the [Department’s] response, they state, “Further, by definition, any pending criminal case could be viewed as a violation of CORI as it relates to a person’s criminal charges, the disposition of which is yet to be determined.” It is clear that under this interpretation of CORI, any and every public record relating to criminal charges that has not been resolved would be exempt which is blatantly incorrect. 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).

Chief James E. Palmeri SPR24/1211 Page 4 May 6, 2024 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 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. Based on the Department’s response, it is unclear how the record requested by Mr. Hourihan fall within the definition of CORI. Specifically, it is not clear how the record constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167.

Chief James E. Palmeri SPR24/1211 Page 5 May 6, 2024 Additionally, it is unclear how the record can be withheld in its 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. 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Although the Department claims it has an open investigation and prosecution regarding the requested records, it is unclear how the record, in its entirety, can be withheld under Exemption (f). It is additionally uncertain from the Department’s response whether the record

Chief James E. Palmeri SPR24/1211 Page 6 May 6, 2024 contains confidential investigative techniques that would be prejudicial to the ongoing investigation if disclosed. The Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive record “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). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Hourihan 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: Mark Hourihan