Flannery Rogers v. Department of State Police (SPR 20250895)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 11, 2025 SPR25/0895 Allison Mondello Public Records Manager Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Flannery Rogers, Esq. 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 February 20, 2025, Attorney Rogers requested “[1] All incident reports written regarding this traffic stop [and] [2] The names of all troopers who responded to this traffic stop, copies of their body worn cameras and their cruiser cameras. . . .” Previous Appeal This request was the subject of a previous appeal. See SPR25/0626 Determination of the Supervisor of Records (March 14, 2025). In my March 14th determination, I learned that the Department intended on providing a supplemental response. The Department responded on March 28, 2025, withholding responsive records in their entirety under Exemption (a) and (f) of the Public Records Law. See G. L. c. 4, § 7(26)(a),(f). Unsatisfied with the Department’s response, Attorney Rogers appealed, and this case, SPR25/0895, 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. 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 SPR25/0895 Page 2 April 11, 2025 Att’y 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. Current Appeal In her appeal to this office, Attorney Rogers states: On February 20, 2025, I filed a public records request seeking information related to a traffic stop in Wareham: incident reports, the names of the troopers involved in the traffic stop, and the recordings from the troopers’ body-worn and cruiser cameras. I identified the traffic stop by both the name of the operator stopped and by the citation number that was issued. I identified myself as the operator’s legal representative…. the MSP restated the text of its original response, denying my request based on G.L. c. 4, §7, cl. 26(f). For the first time, it also argued that disclosure of the requested records would violate G.L. c. 6, § 172, and therefore statutorily exempt pursuant to G.L. c. 4, §7, cl. 26(a). The MSP has not met its burden to establish by a preponderance of the evidence that the requested records are exempt from disclosure pursuant to G.L. c. 4, §7(f)…. As I stated in my initial appeal, a search of pending prosecutions in the Wareham District Court does not return any results related to the requested records. The MSP’s bare assertion otherwise, in spite of evidence to the contrary, is insufficient to meet its burden…. MSP also claims that disclosure would violate G.L. c. 6, § 172. Although the MSP does not indicate the specific Criminal Offender Record Information, see G.L. c. 6, § 176, that the requested records purportedly contain, I assume the MSP refers to the name and date of birth of [a named individual], who was subjected to the traffic stop, notwithstanding the fact that [a named individual] was not arrested, and no criminal complaint has issued…. Moreover, and as Plymouth District makes clear, where there is information protected by G.L. c. 6, § 175 contained in the public records, the remedy is redaction, not denial of the request. The Department’s March 28th Response In its March 28, 2025 response, the Department states it “has identified the following potentially responsive record(s) in its possession, custody, or control: Arrest/Incident/Offense Report; 2025-DTrp-l 552 [and] Body-Worn Camera/Cruiser Mounted Camera footage[.]” Additionally, the Department cited Exemptions (a) and (f) to withhold the records in their

Allison Mondello SPR25/0895 Page 3 April 11, 2025 entirety. 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). 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

Allison Mondello SPR25/0895 Page 4 April 11, 2025 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. Additionally, G. L. c. 6, § 172(m) provides in pertinent part: Notwithstanding this section or chapter 66A, the following shall be public records: (1) police daily logs, arrest registers, or other similar records compiled chronologically; (2) chronologically maintained court records of public judicial proceedings; (3) published records of public court or administrative proceedings, and of public judicial administrative or legislative proceedings; and (4) decisions of the parole board as provided in section 130 of chapter 127. G. L. c. 6, § 172(m). Under Exemption (a), the Department states, “[r]eleasing arrest reports would violate G.L. c. 6, § 172 which prohibits the dissemination of CORI information for which G.L. c. 6, § 167 defines as ‘records and data in any communicable form compiled by a 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 ... sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment.’ Each report relates to both an arrest and to a criminal charge against a specifically named individual. Accordingly, they are not subject to public release.” Based on the Department’s response, it is unclear how the records requested fall within the definition of CORI. Specifically, it is not clear how the records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. Further, it is unclear how portions of the records in question would not constitute the sort of “police daily logs, arrest registers, or other similar records compiled chronologically” described in G. L. c. 6, § 172(m). The Department must clarify this. 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

Allison Mondello SPR25/0895 Page 5 April 11, 2025 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 289-90. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass. at 62. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to

Allison Mondello SPR25/0895 Page 6 April 11, 2025 aid in the investigation. In its March 28th response, the Department states: Please note that the records you seek relate to an on-going and active criminal prosecution which is now pending in the Wareham District Court. Because of the pendency of criminal charges, the records you seek are not subject to public disclosure pursuant to G.L c. 4, §7, cl. 26 (f) which specifically exempts from public disclosure 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…. The Department maintains that the investigative records at issue exclusively contain, or have interwoven throughout, information that, if disclosed, would prejudice any criminal trial in this matter by: 1) revealing non public information to the prospective jury pool, thereby narrowing the number of potential impartial jurors; 2) releasing indirectly the names of potential witnesses, and any statements thereto, thereby exposing them to public inquiry, chilling their cooperation, and/or predetermining their testimony; and 3) providing a roadmap to the prosecutions legal strategies, thereby giving the defense an unfair advantage. For these reasons, it would not be in the collective public interest not to disclose these records in their entirety at this time. The Department’s response did not contain the specificity required in a denial of access to public records. While the Department claims the responsive records pertain to an ongoing investigation, it does not explain the subject of the investigation nor does it describe how the requested records are part of the investigation. Further, it is unclear how the records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (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. Conclusion Accordingly, the Department is ordered to provide Attorney Rogers with a response to her 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.

Allison Mondello SPR25/0895 Page 7 April 11, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Flannery Rogers, Esq.