Anthony Mirenda v. Department of State Police (SPR 20241743)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2024 SPR24/1743 Allison Mondello Public Records Manager Office of the Chief Legal Counsel Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Anthony D. Mirenda, Esq., of Foley Hoag LLP, appealing the response of the Department of State Police (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 25, 2023, Attorney Mirenda requested the following records regarding a “Massachusetts State Police stop in Stoneham on July 2, 2022 of a U-Haul truck with members of and equipment belonging to the Patriot Front Group”: [1] Copies of all police reports relating to the Traffic Stop and the issuing of the Citations on July 2, 2022, and copies of the Citations issued. [2] Copies of all police reports, intelligence reports or other reports concerning the Patriot Front’s presence in Massachusetts on July 2, 2022. [3] Body camera, automobile camera or other video or audio recordings made by or of any officers or any other person present at the scene of the Traffic Stop. [4] Body camera, automobile camera or other video or audio recordings made by or of any officers or any other person concerning the Patriot Front’s presence in Massachusetts on July 2, 2022. [5] Copies of any witness statements, including recorded statements, made to any officers, detectives or other investigators during any investigation of the Traffic Stop on July 2, 2022. [6] Copies of any witness statements, including recorded statements, made to any officers, detectives or other investigators concerning the Patriot Front’s presence in Massachusetts on July 2, 2022. [7] Any materials including but not limited to, reports, notes, video, body camera footage of Massachusetts State Police released to any media outlet, including the Boston Globe, or released in response to any public records request, in July 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

Allison Mondello SPR24/1743 Page 2 June 26, 2024 2023 relating to the Traffic Stop and the issuing of the Citations on July 2, 2022. Previous appeal This request was the subject of a previous appeal. See SPR24/0723 Determination of the Supervisor of Records (March 22, 2024). In my March 22nd determination, it was my understanding that the Department intended on providing a further response. The Department responded on April 4, 2024. Unsatisfied with the Department’s response, Attorney Mirenda petitioned this office and this appeal, SPR24/1743, 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 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 April 4th Response In its April 4, 2024 response, the Department cited the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law 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, 3 77 Mass. 151, 54 (1979); Ottaway

Allison Mondello SPR24/1743 Page 3 June 26, 2024 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. . . . G. L. c. 6, § 167. Under Exemption (a), the Department stated, “[g]iven the record(s) you seek relate specifically to the arrest of an identified individual, the responsive report is not subject to public disclosure pursuant to G. L. c. 6, § 172 et. seq. As a result the Department denies your request for this record.”

Allison Mondello SPR24/1743 Page 4 June 26, 2024 The statute, G. L. c. 6, § 172 et. seq., referenced by the Department regards dissemination of criminal offender record information. Upon review, it is unclear how the statute, specifically or by necessary implication permits the Department to withhold the requested records. The Department must clarify. Further, the Department has not met its burden to show that the records fall within the CORI Act. Specifically, the Department has not demonstrated that the withheld 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). 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). In addition, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the records it has in its possession that the Department withheld under Exemption (a). Conclusion Accordingly, the Department is ordered to provide Attorney Mirenda 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. Mr. Mirenda may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Anthony D. Mirenda, Esq.