Sarah E. Crossen v. Framingham, City of - Police Department (SPR 20241625)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2024 SPR24/1625 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. Previous Appeal The request was the subject of a previous appeal. See SPR24/0944 Determination of the Supervisor of Records (April 10, 2024). In my April 10th determination, I found that the Department had not met its burden to withhold records, in their entirety, under Exemption (a) of the Public Records Law. The Department provided responses on April 26, 2024 and May 8, 2024. Unsatisfied with the Department’s responses, Attorney Crossen petitioned this office and this appeal, SPR24/1625 was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR24/1625 Page 2 June 13, 2024 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. 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 April 26th and May 8th responses In its April 26, 2024 response, the Department stated that responsive records had been provided and that redactions within those records were made pursuant to Exemption (a) and Exemption (c) of the Public Records Law. Attorney Crossen replied seeking further clarification regarding the redactions and the civil warning that the Department previously claimed it withheld. In its May 8, 2024 response, the Department asserted it is not withholding any records in their entirety and had already “identified the exemptions that apply to the redactions made and explained with specificity how they apply.” Current Appeal In her appeal, Attorney Crossen contends: I followed up with the Department on April 24, 2024 … and received a response … stating that all records had been provided and again reiterating the same generic exemptions and claiming CORI protection, which your order had already found insufficient…. I am further appealing this response, which entirely disregards the substance of the order issued by your office on April 10, and am again requesting the Civil Warning and a less redacted police report as I am entitled to under Massachusetts Public Record Law. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding of records that are:

Kristin Sullivan SPR24/1625 Page 3 June 13, 2024 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. 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

Kristin Sullivan SPR24/1625 Page 4 June 13, 2024 include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. In its April 26, 2024 response, the Department states, “[t]he crash narrative was redacted under exemption (a) through CORI as it contained information regarding what the citation was for.” Based on the Department’s response, I find that the Department has not met its burden to show that the redacted portion of the police report falls within the CORI Act. Specifically, the Department has not demonstrated that the redacted portions of the crash narrative within the record constitutes “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. 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). The Department must clarify this matter. Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988)

Kristin Sullivan SPR24/1625 Page 5 June 13, 2024 (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its April 26, 2024 response, the Department asserted, “[d]river’s license numbers are redacted under Exemption (c).” Upon review I find that the Department has met its burden to redact driver’s license numbers from the police report pursuant to Exemption (c). Civil Warning #2762266 In her appeal, Attorney Crossen states, “[m]y office was told by the responding office that the other driver [in the motor-vehicle incident] was issued a civil warning, # 2762266, and was not permitted to drive away from the scene…. I followed up with the Department on April 24, 2024 … and received a response … stating that all records had been provided.” In a telephone conversation between a staff attorney of the Public Records Division and a representative of the Department, the Department stated that after diligent searching the Department has confirmed they do not possess a copy of this civil warning. The numeric label of the civil warning indicates it is a paper citation issued at the scene, as opposed to an electronic citation which is automatically e-filed. Paper citations include two physical carbon copies separated by tearing a perforation. One copy of this citation is given to the individual receiving the citation and one copy is physically returned to the Department for filing. In this case, the Department’s copy was never entered into the electronic system. The Department advises Attorney Crossen that it may be possible that information about this incident may be documented within the identified individual’s driving record at the Massachusetts RMV. Records Management Public Records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Department’s response raises concerns regarding records management practices by the Department. Please be aware safeguards must be instituted by the Department to ensure that all records are retained in accordance with both applicable law as well as the retention schedules

Kristin Sullivan SPR24/1625 Page 6 June 13, 2024 promulgated by this office. G. L. c. 66, § 8; G. L. c. 66, § 13; G. L. c. 66, § 15. For further guidance in records management and retention, the Department may contact the Records Management Unit (RMU) at 617-727-2816. The RMU operates under the authority of the Supervisor of Records, assisting state and local government entities in creating, managing, securing, and preserving records needed to conduct business and protect the rights and obligations of citizens and government. Training workshops on records management are conducted upon request. Where the Department has confirmed that it does not possess the civil warning record, I find that this portion of the appeal is resolved. Further, the Department has identified the agency that may possess the record. Consequently, Attorney Crossen may wish to request the record from the identified agency. 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.