Pascarelli, Jr., Anthony v. Southborough, Town of - Police Department (SPR 20261146)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 13, 2026 SPR26/1146 Lieutenant Sean McCarthy Records Access Officer Southborough Police Department 32 Cordaville Road Southborough, MA 01772 Dear Lieutenant McCarthy: I have received the petition of Anthony Pascarelli, Jr. appealing the response of the Southborough 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 March 22, 2026, Mr. Pascarelli requested, “… public information in regard to call 25-3858 about a motor vehicle crash that resulted in an arrest. I am requesting:” [1] Police log entry[;] [2] All police reports associated with this call (accident report/arrest report/any police supplemental report)[;] [3] Audio recording(s) of the subject’s phone call(s) once back in booking. [4] Body worn camera audio/video footage only from the arresting/reporting officer from the time of activation to the moment that the subject was placed in the cruiser after being placed under arrest. The Department responded on March 30, 2026. Unsatisfied with the Department’s response, Mr. Pascarelli petitioned this office and this appeal, SPR26/1146, 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

Lieutenant Sean McCarthy SPR26/1146 Page 2 April 13, 2026 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 Marth 30th Response In its March 30, 2026 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 his appeal petition, Mr. Pascarelli states, “I wish to appeal this denial of public records.” 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

Lieutenant Sean McCarthy SPR26/1146 Page 3 April 13, 2026 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 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 further stated, “[t]he records requested involve the identification of an individual that is being criminally charged; and as a result, such information must be withheld under the law. All requests for an individual’s CORI shall be directed to DCJIS.” Based on the Department’s response, it is unclear how the responsive records may be withheld under CORI as it operates through Exemption (a) of the Public Records Law. Specifically, it is not clear how the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. It is additionally unclear if the Department could provide segregable portions of the responsive records. Any non- exempt segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify.

Lieutenant Sean McCarthy SPR26/1146 Page 4 April 13, 2026 Further, based on the Department’s response, it is unclear what types of records it possesses that it is withholding from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying each of the records. Therefore, the Department must identify the records it has in its possession that the Department withheld under Exemption (a) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Pascarelli 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. Mr. Pascarelli 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: Anthony Pascarelli, Jr.