|Submitted||June 12, 2018|
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To Whom It May Concern:
Pursuant to the Massachusetts Public Records Law, I hereby request the following records:
Any reports of incidents on 07/22/2016 involving a motorcycle on Haviland St, Boston, MA 02115 and the Mass State Police.
I also request that, if appropriate, fees be waived as we believe this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.
I expect the request to be filled in an accessible format, including for screen readers, which provide text-to-speech for persons unable to read print. Files that are not accessible to screen readers include, for example, .pdf image files as well as physical documents.
In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.
Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 10 business days, as the statute requires.
Good Morning Mr. Fernandes,
The Department is in receipt of your below request for a report pertaining to the incident that occurred on July 22, 2016 on Haviland Street in Boston. As you may or may not be aware, the public availability of arrest reports is the subject of on-going litigation in the case of the Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services case. The decision of the Superior Court in this case is presently on appeal. As the Superior Court judge wrote, “The key dispute involves the [following] text:” Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Section 3 of chapter 69 of the Acts of 2018 struck this text from the definition of CORI. Because the legislature attached an emergency preamble to this law, this change took effect on April 13, 2018 when the Governor signed it. Accordingly, the Superior Court’s decision is a declaration of what the law used to mean, rather than what the law means today.
The Department of State Police has carefully reviewed the definition of CORI as amended by chapter 69 of the Acts of 2018, as well as other provisions of this new law that inform the application of the Public Records law to your request. These provisions affirm the long-held legislative concern “that gainful employment is crucial to preventing recidivism, and that criminal records have a deleterious effect on access to employment.” Commonwealth v. Pon, 469 Mass. 296, 307 (2014); see, e.g., section 5 (“[c]ategories of [arrest] data which constitute personally identifiable information shall not be posted or made available to the public and shall not be public records as defined in section 7 of chapter 4”); section 186 (shortening the period for sealing of misdemeanors); section 187 (shortening the period for sealing of felonies); section 195 (establishing procedures for expunging records, including the contents of public police logs).
Based on this review, the Department has concluded that the police report you have requested is not a public record, pursuant to M.G.L. c. 4, §7 cl. (26)(a) because they are material specifically (M.G.L. c. 6, §§167-178B) or by necessary implication (e.g., M.G.L. c. 94C, §44 & M.G.L. c. 41, §98F & M.G.L. c. 276, §100 & M.G.L. c. 276, §100L)) exempted from disclosure by statute.
Material Specifically Exempted from Disclosure By Statute
The police report you requested is CORI and not a public record because it is “records and data in any communicable form compiled by a Massachusetts criminal justice agency [in this case, the State Police] which concern an identifiable individual and relate to the nature or disposition of a criminal charge [or] an arrest.”
Material By Necessary Implication Exempted from Disclosure By Statute
Even were this report not subject to the express CORI protections, police reports are by necessary implication, entirely exempt from public disclosure by statute. See, e.g., M.G.L. c. 41, §98F & c. 6, §167(m)(1) (excluding “police daily logs...[and] other similar records compiled chronologically” from CORI); M.G.L. c. 94C, §44 (police access to arrest records otherwise subject to sealing); M.G.L. c. 6, §172D (identifying “arrest, conviction, incarceration and rehabilitation information” as CORI); M.G.L. c. 6, §172F (allowing the department of early education and care access to “arrest data” and “juvenile arrest…data” “notwithstanding section 172”); M.G.L. c. 22C, §§32-35 (ensuring that hate crime “incident reports” receive “all confidentiality requirements otherwise imposed by law”); M.G.L. c. 276, §100 (authorizing dissemination of information concerning persons on probation, including but not limited to police reports, to probation officials, but unambiguously declaring that the same “shall not be regarded as public records and shall not be open to public inspection[;]” and 803 CMR 7.02 and 28 CFR 20.3 (protecting criminal history record information, including “identifiable descriptions and notations of arrests…or other formal criminal charges”).
Various other exemptions, including but not limited to the investigatory and privacy exemptions, independent from and/or in combination with Exemption (a), similarly preclude dissemination of all or so much content of any given police report that the effort and results of any such endeavor would be futile. See, SPR13/144 (“the records will be so heavily redacted…that the records would be rendered functionally useless to [any requestor;]” see also M.G.L. c. 4, §7, cl. (26) (a)-(u). For example, police reports constitute “accounts of police investigatory efforts including the police officer's own observations of the incident in question.” Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1976130979&pubNum=578&originatingDoc=I425f5d0c845a11da9cfda9de91273d56&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.DocLink)>. They invariably include “statements taken from witnesses, additional information obtained from other sources, some confidential, and leads and tips to be pursued.” Id. As such, they often contain “investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials[,] the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Id. Similarly, individuals (those accused, those victimized and those involved in reported crimes) invariably maintain significant privacy interests in the dissemination of any given police report. Often, the “interest of the individual in privacy weighs more heavily in the balance …[where] he [is or] was not convicted.” New Bedford Standard-Times Publishing Co. v. Clerk of the Third District Court of Bristol, 377 Mass. 404, 414-415 (1979). With this in mind, the SJC has made it clear that, in relation to privacy, “the circumstances in which the identities of the alleged perpetrators or their alleged offenses merit disclosure or require redaction” must be carefully weighed against any public’s interest in disclosure. In re Subpoena Duces Tecum, 445 Mas. 685, 688-689 (2006). Only “[w]here the public interest in obtaining information substantially outweighs the seriousness of any invasion of privacy, [must] the private interest in preventing disclosure … yield to the public interest.” Id. quoting Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 156 (1979)<https://1.next.westlaw.com/Link/Document/FullText?findType=Y&serNum=1979103787&pubNum=0000578&originatingDoc=I31999fe07d5311da9cfda9de91273d56&refType=RP&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)> (emphasis added).
Furthermore, whereas witness information and testimony is essential to efficient and effective law enforcement, the investigative exemption is also intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly to law enforcement. Bougas v. Chief of Police, 371 Mass. 59, 62 (1976). Law enforcement has an interest in encouraging individuals to report matters without apprehension that such information will be made a public record. The disclosure of the names of witnesses and identifying details may deter potential witnesses and citizens from providing information to police in future investigations. The investigative exemption also allows an investigative agency to withhold from public disclosure any information which, if disclosed, would create a grave risk of directly or indirectly identifying the voluntary witness(es). Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass.438 (1983). General Laws c. 4. §7, cl. 26 (f), therefore, allows the permanent withholding of the name(s) and identifying details of witnesses. Moreover, G. L. c. 4, §7, cl. 26 (f) recognizes that the disclosure of certain investigatory materials could detract from effective law enforcement to such a degree as to operate in derogation, and not in support, of the public interest. Bougas v. Chief of Police, 371 Mass. 59, 62-63 (1976).
Thus, the Department maintains the position that the record(s) responsive to this request are exempt from public disclosure for the foregoing reasons.
If you wish to challenge any aspect of this response to your request, which are hereby incorporated into this correspondence, you may appeal to the Supervisor of Public Records following the procedure set forth in 950 C.M.R. 32.08, a copy of which is available at http://www.mass.gov/courts/case-legal-res/law-lib/laws-by-source/cmr/. You may also file a civil action in accordance with M.G.L. c. 66, § 10A.
Trooper Alena Sullivan
MA State Police
Office of the Chief Legal Counsel
470 Worcester Road
Framingham, MA 01702