Eric Neal v. Ayer, Town of - Police Department (SPR 20253510)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 17, 2025 SPR25/3510 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 Appeals This request was the subject of prior appeals. See SPR25/3021 Determination of the Supervisor of Records (October 29, 2025) and SPR25/3192 Determination of the Supervisor of Records (November 13, 2025). In my November 13th determination, I found that the Department had not met its burden to withhold an arrest report under the Criminal Offender Record Information (CORI) Act as it operates through Exemption (a) of the Public Records Law. The Department provided a response on November 26, 2025. Unsatisfied with the response, Mr. Neal petitioned this office and this appeal, SPR25/3510, 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). 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 SPR25/3510 Page 2 December 17, 2025 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. The Department’s November 26th Response In its November 26, 2025 response, the Department cited Exemption (a) of the Public Records Law to withhold the arrest report 2501-20-AR in its entirety. The Department also cited Exemption (c) of the Public Records Law in support of the redactions to two additional records. Current Appeal In his November 26, 2025 appeal, Mr. Neal asserts, “[t]he state has now ordered [the Department] to give me the arrest report after he cited the CORI exemption. Now he is violating your order and citing the very same exemption that you said didn’t apply. I am asking that the state take further action against the Ayer police as they're clearly violating Public Records Law and the state’s decision.” 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

Robert Mackie SPR25/3510 Page 3 December 17, 2025 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 (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. In its response, the Department states, “[i]n relation to your request for arrest report 2501- 20-AR; this case had an arraignment date of 2/24/25 with an Ayer District Court Docket number of 2548CR000210. The case’s current status is Dismissed as of 9/26/25. At this time your request for Arrest Report 2501-20-AR is denied for the below reason: In accordance with the Public Records Access Regulations, M.G.L. Chapter 4, §7(26) (a) - The Statute Exemption, in 7(26) (a) - The Statute Exemption, in relation to Criminal Offender Record Information exempt from Public Records.”

Robert Mackie SPR25/3510 Page 4 December 17, 2025 In Camera Inspection In order to facilitate a determination as to the applicability of the Department’s claims to withhold the arrest report under Exemption (a) of the Public Records Law, the Department must provide this office with an un-redacted copy of the responsive record for in camera inspection. After I complete my review of the document, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations, 950 C.M.R. 32.08(4); see also G. L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Comm’n Against Discrimination, 384 Mass. 198, 206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the responsive record for in camera inspection without delay. Sincerely, Manza Arthur Supervisor of Records cc: Eric Neal