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SPR Bulletin NO. 3-03 November 21, 2003

To: Massachusetts State and Local Police Agencies From: Supervisor of Records, Alan N. Cote RE: Public record requests and C.O.R.I. Dear Police Professional: This office has witnessed a dramatic rise in the number of appeals filed by requesters seeking records from police agencies in the recent months. After consultation with several records officers and rank officers in connection with these appeals, I have discovered a troubling trend developing within the police community. This Advisory Opinion is a result of that trend. The first part of this Opinion is intended to be used as a quick guide for agencies, sort of a frequently asked questions section. The second half contains a more thorough analysis of the law. If you have any questions after reviewing this Opinion, please do not hesitate to contact this office at 617-727-2832.
Part I.

Rules of Public Records Anyone can get any police record at anytime upon request. The record may be redacted to remove bits of information such as witness and victim's names and addresses. After a redaction takes place, you must explain in writing to the requester what information was redacted and the specific reasons why the record was sanitized. The remaining portions of the record must then be released. No one may inquire as to the persons identity or the motive behind asking for the record. The request may be oral or written. Every requester should get the same record as every other requester; the status or involvement of someone is immaterial. A person actually involved in the incident has no greater rights than anyone else requesting the record. You cannot require someone get a court order, subpoena or warrant in order to get a copy of a record. The public records law provides guidelines for the fees to be charged when providing a record. The fees apply to paper as well as electronic, audio or video records. A written, good faith estimate of the cost for providing a copy of the record must be given to the requester within ten days of the request and if possible, the

actual copy of the record must be provided within that same ten days but only after payment of the good faith estimate.

The C.O.R.I. law is extremely misunderstood. Primarily, C.O.R.I. was enacted to allow inmates to resume their lives after incarceration and rehabilitation. It was not enacted to stop the release of police records. The following questions must be analyzed when attempting to redact a record under the C.O.R.I law:
o

Does the information being requested concern a crime for which incarceration is possible?

Each criminal violation must be reviewed to see if the law provides for jail time, if no jail time is possible for the crime the person is charged with, you cannot use the C.O.R.I. law to withhold the information.
o

Does the information being requested concern evaluative information as defined in G.L. ch. 6, sec. 167? If so, you cannot use the C.O.R.I. law to withhold the information.

Chapter 6, section 167 defines Evaluative Information as records, data, or reports concerning individuals charged with crime and compiled by criminal justice agencies which appraise mental condition, physical condition, extent of social adjustment, rehabilitative progress and the like, and which are primarily used in connection with bail, pre-trial or post-trial release proceedings, sentencing, correctional and rehabilitative planning, probation or parole.
o

Does the information being requested concern intelligence information as defined in G.L. ch. 6, sec. 167? If so, you cannot use the C.O.R.I. law to withhold the information.

Chapter 6, section 167 defines Intelligence Information as records and data compiled by a criminal justice agency for the purpose of criminal investigation, including reports of informants, investigators or other Persons, or from any type of surveillance associated with an identifiable individual. Intelligence information shall also include records and data compiled by a criminal justice agency for the purpose of investigating a substantial threat of harm to an individual, or to the order or security of a correctional facility. Most police records (arrest reports, etc) contain this type of information. It is NOT protected by the C.O.R.I. law. Please analyze this step thoroughly.

Does the information being requested concern an identifiable individual either directly or indirectly? If not, you cannot use the C.O.R.I. law to withhold the information. Only data which identifies a specific individual or group of individuals can be withheld under C.O.R.I. Does it contain statistical or analytical data where NO individual is identified? If so, you cannot use the C.O.R.I. law to withhold the information. Is the person to whom the information refers alive? The C.O.R.I. protection is expressly lifted on information regarding deceased persons. Does the information sought relate to the nature or the disposition of: ! a criminal charge ! an arrest ! a pre-trial proceeding, or ! any other judicial proceeding such as sentencing, incarceration, rehabilitation or release

AND 5) was the information sought recorded as a result of the initiation of criminal proceedings or other consequent proceeding? If so, C.O.R.I. is available for use in withholding the information. After this entire analysis has been complete, you will see that pre-arrest reports or data cannot be protected by the C.O.R.I. law. In addition, intelligence information such as informants and witness names and surveillance data cannot be withheld under C.O.R.I. This information MAY BE withheld under some other law or exemption, but not C.O.R.I. Please analyze each request to determine the best exemption to be used, if any.
Part II.

The Law behind the Public Records Law

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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, 7(26) (2002 ed.). There is a presumption that ALL governmental records are public records. G. L. c. 66, 10(c) (2000 ed.); 950 C.M.R. 32.08(4)(emphasis added). There is a presumption

that public officials perform their public duties in an honest and impartial manner. Lapointe v. License Bd. of Worcester, 389 Mass. 454, 459 (1983); seealsoKonover Mgt. Corp. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (presuming that public officials will perform honestly and impartially). The thirteen statutory exemptions are strictly and narrowly construed. Attorney General v. Assistant Commr of the Real Property Dept of Boston, 380 Mass. 623, 625 (1980). Public records, and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, 10(a) (2002 ed.); seealsoReinstein v. Police Commr of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). It is the burden of the record custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, 10(c) (2002 ed.); seealsoDistrict Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has burden of establishing applicability of exemption). A custodian of records may not institute a policy or procedure concerning public records that is adverse to the provisions of the Public Records Law and its Regulations. See G. L. c. 66, 10 (2002 ed.); 950 CMR 32.00. A custodian may assess a reasonable fee for complying with a public records request. G. L. c. 66, 10(a) (2002 ed.); seealso 950 C.M.R. 32.06(2) (where cost of complying with a public records request is expected to exceed ten dollars ($10.00), custodian shall provide written good faith estimate). A custodian may charge for search time and copies, however these fees must be reasonable and in compliance with the Regulations set forth in the Public Records Law. See 950 C.M.R. 32.06 (fees for public records). The estimate must be drafted by the custodian. The Public Records Law provides that a record custodian shall provide any person with a copy of a requested public record upon payment of a reasonable fee. General laws chapter 66, 10 (2002 ed.) dictates the maximum fees for certain police records and the maximum fees available for all others. Usually, this fee is twenty cents ($.20) per page for a photocopy of a public record. See 950 C.M.R. 32.06(1)(a). A custodian may also charge a fee if complying with a request requires search time. See 950 C.M.R. 32.03 (defining search time as the time needed to locate, pull from the file, copy, and re-file a non-computerized public record). The Regulations provide that, in cases where search time is necessary, a custodian may

charge a pro-rated fee based on the hourly rate of the lowest paid employee who is capable of performing the task. 950 C.M.R. 32.06(1)(a). A custodian must base the search time on the lowest paid employee in the department where those records are normally kept. The search fee must reflect the actual cost of complying with a particular request. G. L. c. 66, 10(a) (2002 ed.).

Conclusion
There is little doubt that MOST police records are public records and must be available to anyone upon request. Exemption (f), the investigatory exemption of chapter 4, section 7(26) may be employed by the custodian to allow for the redaction of the names and addresses of witnesses and victims or to remove information on the record which if released, will so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. The burden of proving the prejudicial effect on law enforcement and the balancing test concerning the public interest lies squarely on the shoulders of the custodian. This office will not uphold any claim of an exemption if it is not substantiated by clear evidence. This office is ready at anytime to provide FREE training and materials to your agency. There is no need to pay for your staff to be trained by third party professionals who may be providing incorrect instruction. If you have any thoughts or comments regarding anything you have read in this Opinion, I urge you to contact this office for clarification. Sincerely, Alan N. Cote Supervisor of Records Commonwealth of Massachusetts
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