Todd Wallack v. Department of Criminal Justice Information Services (SPR 20242344)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 3, 2024 SPR24/2344 Agapi Koulouris, Esq. General Counsel Department of Criminal Justice Information Services 200 Arlington Street, Suite 2200 Chelsea, MA 02150 Dear Attorney Koulouris: I have received the petition of Todd Wallack, of WBUR, appealing the response of the Massachusetts Department of Criminal Justice Information Services (DCJIS) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 3, 2024, Mr. Wallack requested: [1] Log of any complaints made about improper access and dissemination of CORI with Massachusetts Department of Criminal Justice Information Services and the disposition of those complaints since 1/1/2019. [2] Any documentation, such as a record layout or data dictionary, used to maintain the database of complaints about improper use/dissemination of CORI that would show what pieces of information are kept in the database (fields or column names) and explain any codes in the database. [3] … [I]f no such database or log exists, please provide copies of the complaints made to the agency since 1/1/2019 and the response to those complaints[.] Previous Appeal This request was the subject of a previous appeal. See SPR24/2093 Determination of the Supervisor of Records (August 6, 2024). In my August 6th determination, I found that it was unclear whether the Department had provided a response. On August 1, 2024, DCJIS provided a response. Unsatisfied with the response, Mr. Wallack petitioned this office and this appeal, SPR24/2344, was opened as a result. 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

Agapi Koulouris, Esq. SPR24/2344 Page 2 September 3, 2024 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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. DCJIS’ August 1st Response In its August 1, 2024 response, DCJIS states: In response to your first request, DCJIS has included copies of its annual reports for FY20, FY21, FY22, and FY23. Each annual report includes a summary of the complaints received and reviewed by the Criminal Record Review Board along with the disposition of each complaint. DCJIS has not published its FY24 annual report to date. It files its annual reports in December. In response to your second request, DCJIS does not possess a complaint database Or data dictionary. Therefore, DCJIS does not possess documents responsive to this portion of your request. Current appeal In his appeal, Mr. Wallack states, “[t]he agency provided copies of its recent annual reports, but did not provide either a log of complaints it received or copies of the complaints themselves (and the responses DCJIS sent the complainants). The annual reports merely contain a table showing the number of complaints it received each year, but do not contain details on who filed the complaints, the dates of the complaints or the nature of the complaints.”

Agapi Koulouris, Esq. SPR24/2344 Page 3 September 3, 2024 Based on Mr. Wallack’s appeal, in conjunction with the Department’s response, it is unclear if the Department possesses additional records responsive to his request. 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Wallack 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: Todd Wallack