Andrea M. Kelly v. Department of State Police (SPR 20252022)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 24, 2025 SPR25/2022 Allison Mondello Records Access Officer Massachusetts Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Ms. Mondello: I have received the petition of Andrea Kelly, 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 May 8, 2025, Attorney Kelly requested, copies of all records and materials it has within its possession, custody and control relating to the entire investigatory file, including but not limited to all police reports, investigative reports, photographs, videotapes including surveillance video, body camera video, cruiser camera video, interview tapes, booking video, audiotapes, statements made by witnesses, incident reports, interviews, diagrams, activity reports, interoffice correspondence, evidence inventory listings, laboratory reports, alcohol testing reports, forensic reports, evidence, CAD sheets, 911 calls, Miranda forms, booking forms, and all other documents pertaining to the Massachusetts State Police investigation and prosecution of [an identified individual] related to the matter of the Commonwealth v. Paige Pendleton, MSP #2024-CTrp-803, Marlborough District Court Criminal Action No. 2421 CR00093 l. I am requesting a copy of the entire criminal file, including but not limited to the documents previously listed. I am not requesting a copy of [an identified individual’s] CORI. Also, the defendant pled to a CWOF, so the criminal case is closed. The Department responded on May 12, 2025, citing Exemptions (a) and (c) of the Public Records Law to withhold records. Unsatisfied with the response, Attorney Kelly petitioned this office and this appeal, SPR25/2022, 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

Allison Mondello SPR25/2022 Page 2 July 24, 2025 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. 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. The Department’s May 12th response In its May 12, 2025 response, the Department identified the records being withheld as: Arrest/Offense/Incident Report; 2024-CTrp-803 Motor Vehicle Crash Report; 2024-CTrp-803 Body-Worn and/or Cruiser-Mounted Camera footage The Department cited Exemptions (a) and (c) of the Public Records Law to withhold records responsive to the request. 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).

Allison Mondello SPR25/2022 Page 3 July 24, 2025 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. Under Exemption (a), the Department states: With the information provided in the request, the Department conducted a diligent search and located responsive records which cannot be released because they constitute Criminal Offender Record Information (CORI)… Releasing arrest reports would violate G.L. c. 6, § 172 which prohibits the dissemination of CORI information… 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. 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

Allison Mondello SPR25/2022 Page 4 July 24, 2025 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). 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 all 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). Additionally, it is unclear how the records can be withheld in their entirety. The Department must clarify whether segregable portions can be provided. 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). The Department must clarify these matters. 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 the second clause of 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.

Allison Mondello SPR25/2022 Page 5 July 24, 2025 This clause 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 the second clause of 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) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause 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. Under Exemption (c), the Department states: [T]he requested records are not subject to public disclosure pursuant to General Laws c. 4, §7, cl. 26 (c)… In this instance, the Department deems the records and photographs sought to implicate matters of intimate detail of a highly personal and private nature. The Department asserts that the privacy exemption clause exempts from public disclosure information relating to and surrounding such tragic and sensitive matters.… The Department’s response did not contain the specificity required in a denial of access to public records. Based on the Department’s response, it is unclear how the withheld records contain intimate details of a highly personal nature or how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. PETA, 477 Mass. at 292. Also, the Department did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Department must clarify these matters. As a result, I find that the Department did not meet its burden of specificity in withholding the records, in their entirety, under Exemptions (a) and (c) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Attorney Kelly with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its

Allison Mondello SPR25/2022 Page 6 July 24, 2025 Regulations within 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. Sincerely, Manza Arthur Supervisor of Records cc: Andrea Kelly, Esq.