Eric Neal v. Ayer, Town of - Police Department (SPR 20253192)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 13, 2025 SPR25/3192 Robert Mackie Department Assistant Ayer Police Department 54 Park Street Ayer, MA 01432 Dear Mr. Mackie: I have received the petition of Eric Neal, of The FOIA Advantage, appealing the response of the Ayer 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 September 26, 2025, Mr. Neal requested, “...any police incident reports, communications concerning and dispatcher logs on the following [identified individual], within the past 5 years from today’s date.” Prior Appeal This request was the subject of a prior appeal. See SPR25/3021 Determination of the Supervisor of Records (October 29, 2025). In my October 29th determination, I learned that the Department provided a supplemental response on October 29, 2025. Unsatisfied with the response, Mr. Neal petitioned this office and this appeal, SPR25/3192, 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 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

Robert Mackie SPR25/3192 Page 2 November 13, 2025 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 October 29th Response In its October 29, 2025 response, the Department identified “three items related to your request: Call Logs 25-4857 and 25-4354, and Arrest Report 2501-20-AR.” The Department cited Exemption (a) of the Public Records Law to withhold the arrest report 2501-20-AR in its entirety. The Department cited Exemption (c) of the Public Records Law in support of the redactions to the other records. Current Appeal In his October 29, 2025 appeal, Mr. Neal asserts, “I’m trying to clarify the fact that the police didn’t provide anything new. Your office said that they provided a supplemental and they didn’t. They literally just provided the same exact thing that they gave me originally which are the call logs. That’s not what I had challenged with your office. I wanted the arrest report.” Upon review, Mr. Neal’s appeal is only concerned with Exemption (a) and specifically the arrest report. 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, 545-46 (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.”

Robert Mackie SPR25/3192 Page 3 November 13, 2025 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, In accordance with the Public Records Access Regulations, M.G.L. Chapter 4, § 7(26) (a) - The Statute Exemption, in relation to Criminal Offender Record Information exempt from Public Records. In relation to the two attached call logs, the following redactions have been made: In accordance with the Public Records Access Regulations, M.G.L. Chapter 4, §7(26) (a) - The Statute Exemption, Phone Numbers have been redacted from the record as the items are found to be inherently private that we do not have the authority to release. 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. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167.

Robert Mackie SPR25/3192 Page 4 November 13, 2025 The Department has not met its burden to show that the record falls within the CORI Act. Specifically, the Department has not demonstrated that the withheld record constitutes “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 record 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). The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Neal 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. Neal 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: Eric Neal