Olufunmilola Shelly v. Framingham, City of - Police Department (SPR 20251513)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 10, 2025 SPR25/1513 Colleen Kehew Records Access Officer Framingham Police Department 1 William Welch Way Framingham, MA 01702 Dear Ms. Kehew: I have received the petition of Olufunmilola Shelly 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 April 8, 2025, Ms. Shelly requested “[m]ug shots for all adults arrested 3/25/2025 through 4/7/2025,” and identified multiple police reports for reference. The Department responded on April 18, 2025. Unsatisfied with the Department’s response, Ms. Shelly petitioned this office and this appeal, SPR25/1513, 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. 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. 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

Colleen Kehew SPR25/1513 Page 2 June 10, 2025 The Department’s April 18th Response In its April 18, 2025 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. Current Appeal In her appeal petition, Ms. Shelly argues the Department’s response is deficient for the following reasons: [1] Mug shots are not CORI [2] Incident reports must be released with limited redaction… [3] Failure to meet burden of proof… [4] Public interest outweighs any speculative privacy claim… 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, 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.

Colleen Kehew SPR25/1513 Page 3 June 10, 2025 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. Under Exemption (a), the Department states: The Framingham Police Department must deny your request on the grounds that the requested “mug shots” would violate the Criminal Offender Record Information Act (CORI)….The CORI statute imposes restrictions on the dissemination of records which were compiled by the Department concerning an identifiable individual which relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Therefore, these records are being withheld pursuant to Exemption (a)… [T]he CORI statute prevents the Department from disclosing the requested police arrest records and reports. The Department of Criminal Justice Information Services (DCJIS) provides public access to certain criminal records. You may be able to obtain some of what you are seeking by requesting it through the iCORI program… Based on the foregoing, I find that the Department has not demonstrated how the requested mug shots fall within the definition of CORI. Specifically, it is not clear how the

Colleen Kehew SPR25/1513 Page 4 June 10, 2025 records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. Consequently, the Department has not met its burden to withhold the requested records under the Exemption (a) and CORI. Conclusion Accordingly, the Department is ordered to provide Ms. Shelly 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. Ms. Shelly 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: Olufunmilola Shelly