5 COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL-NO. BOSTON GLOBE MEDIA PARTNERS, LLC, Plaintiff, vs. DEPARTMENT OF CRIMINAL JUSTICE INFORMATION SERVICES, MASSACHUSETTS DEPARTMENT OF STATE POLICE, DEPARTMENT OF CORRECTIONS, NORTH ANDOVER POLICE DEPARTMENT and THE BOSTON POLICE. DEPARTMENT, Defendants. MEMORANDUM OF DECISION AND ORDER ON .ZFOR SUMMARY JUDGMENT The plaintiff, Boston Globe Media Partners, LLC (?Globe?) brought this declaratory judgment M?h Le, action regarding the scope of the Criminal Record Information Act, G.L. c. 6, 167 et seq. i 3 05 l7 statute against the defendants Department Of Criminal. Justice Information Services Liar Massachusetts Department Of State Police Massachusetts Department of Correction 5 lo E- North Andov?er Police Department (?Town and The Boston Police Department gift), On November 1.3, 2017, the Globe ?led ?Plaintiff?s Motion for Summary Judgment? (?Motion?), which all defendants hav?e ?opposed. DCJIS, MS-P and DOC (collectively, ?State QRVE: Defendants?) ?led ?State Defendants? motion for Summary Judgment? (?State Motion?). The other defendants have cross?moved for summary judgment in their oppositions. After hearing on November 21, 2.017, the Motion is ALLOWED, the State Motion is DENIED, and the Court enters declaratory relief except as to the Town PD, which is dismissed for lack of an actual controversy. 1 BACKGROUND The Parties? Rule statement establishes the following, drawing all inferences in favor of the defendants, as Opposing parties. Banking Photographs MSP and the Town PD, like many law-enforcement agencies in the Commonwealth? regularly photograph persons who have been detained, arrested, or otherwise taken into custody. Photographs- of such individuals often are. referred to as booking- photographs or mogshots. Both the MSP and Town PD have on occas'ionreleased booking photographs of private c?itizens'before and after those persons were apprehended or detained. In the late summer of 20 1 5, Globe .repOrter Todd W-allack made a series of public records requests for booking photographs of law enforcement of?cers arrested for operating automobiles while under the in?uence. Two of the requests were made to the State Police and a third to the Town PD. Each of the public records requests was denied on the asserted grounds that booking phOtographs are criminal offender record information the disclosure of which Was prohibited bylaw by the CORI Act. The Globe appealed the. denial. ofthe public records requests to the. Supervisor of Public Records. The Supervisor-denied all. three. appeals-on February 20, 2015. The BPD publishes information regarding incidents on-l'ine at This information may include the identity of a suspect when the posting "is made contemporaneous to the arrest. The BPD does not identify an arrested individual when publishing historical information. Police Incident Reports In October 2014,_ Wallack made a public records request to the .BPD for, among other things, police incident reports, and names and photographs of BPD of?cers charged with driving under the in?uence. The B-PD refused to produce the incident reports on the grounds that disclosure was prohibited by the CORI Act. The Globe appealed the decision to the Supervisor of Public Records. The Supervisor denied the Globe?s appeal. In other cases, MSP has released information about the arrest of private persons. The Globe appealed to the Supervisor of Public Records. The Supervisor denied the appeal. The Globe frequently has. received incident reports and. booking photographs from other law enforcement agencies, both shortly after an arrest and years later. Inmate Logs In September .2014 the. Globe, .acting through Wallack, made a public records request to the DOC asking for a copy of the ?chronological booking log? maintained by the DOC. The DOC denied the request on the grounds that the booking log is comprised of CORT exempt from public disclo'sure. The Globe appealed the denial to the Supervisor of Public Records, which denied the appeal. The DOC maintains an Inmate Management System, a data base that tracks the location on inmates from the time they enter the correctional system until they are. released. A-ppriss Inc, operates a. web site called VineLink where anyone can look up the status of people incarcerated. in the DOC and Essex County. VineLink is a service ?provided. through the collaboration of the Massachusetts Department of Corrections. [sic] and the Essex County Sheriff '3 Department.? Users of the site are not limited to victims, attorneys, or law enforcement officials. Anyone can access the site. from anywhere in the world. W'allack has used the site in the course of his duties as a. reporter. The site .can be used to look up a person by typing in a last name: and ?rst initial. Alternatively, one can search. names by Offender Identi?cationNumber. For instance, Wa?l?lack was able to randomly type in an Offender (D (Vt/103402) and get the full name of an inmate, as well as the person?s. location, custody status and. gender. The site typically lists a person?s full name, custody status, location, gender, and offender identi?cation. In many cases, the site also. lists the person?s date of birth, race and scheduled release date. DCJ IS has con?rmed in writing that since the Criminal Record Review Board was established in May 4, 2012 under the amended. CORI law, the agency has not found one violation of CORI involving the disclosure of booking photographs, police incident. reports, or booking logs. DCJIS also has confirmed that none of the CORI Violations found during that time period involved information obtained from a scurce other than the CJ IS or system. Boston PD ?5 Additional UndiSputed Facts In some circumstances, a police officer is called. upon to respond to an incident during which s/he makes observations that arise to probable. cause necessary to make an arrest. Once a person is arrested, they are taken into police custody and processed (a/lda booked). After booking, the individual is transferred to court for criminal prosecution. The identity of an individual arrested is included in an incident report and booking paperwork. The criminal prosecution of an individual arrested at a scene and of an individual that is the subject of an alloWed criminal complaint is the same. Not all incident reports include an arrest. Not all arrests lead to criminal prosecution. For example, police of?cers can document the circumstances of a motor vehicle accident, assistance to an outside agency, Or a call for police services where the suspect is not known. Incident reports are maintained in the BPD Record Management System and booking sheets are maintained in the RICI System. In response to the Globe?s October, 2014 requests, Lt. Det. Mike McCarthy, the Director of the BPD Office of Media Relations, and Wallack exchanged e?mails in an effort. to narrow the request and provide Wallack With the necessary information to meet his needs. In the end, the BPD agreed to- 4 provide summaries of ?ve Internal Affairs Division cases in resolution of the October 21, 2014 request. On November .5, 2014, BPD provided Wallack with ?ve (5) summaries of incidents in which of?cers were arrested for" OUI, via e-mail. The names of the of?cers involved. in the- underlying incidents were withheld as CORI pursuant to G.L. c. 6, 167-168. After- Wa?llack?s appeal. to the Supervisor of Public Records on November 17,- 2014, BPD provided Wallack with a further response to his October 2014 request. DISCUSSION On summary judgment,- the moving party has the burden to demonstrate that there: is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law. .F_oley v. Boston Hons. Auth. 407 .Mass. 640,. 643 (1990). The movant may meet this burden by showing that the plaintiff has no. reasonable expectation of producing evidence on a necessary element of his case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party meets the burden, the opposing party must advance speci?c facts that establish a genuine dispute of material fact. Id. I. The Supervisor of Public Records Upheld withholding of the public records under Exemption of the Public Records Act, G.L. c. 4, which allows public agencies to withhold records which are . . speci?cally or by necessary implication exempted from disclosure by statute.? This exempt-ion applies where a statute restricts the public?s right to inspect records under the Public Records Law. Attorney General v. Collector of Lynn, 377 Mass. 151, .154 (1979); Ottawa): Newspapers, Inc. v. Appeals Court, 372 Mass. 539., 545-46 (1977). CORI is the only statute-involved here. The Court?s review of the grounds for'withholding a record under the public records law, G..L. c. 66, 710, is de. novo. Peeple for the Ethical Treatment. of Animals, Inc, Department of Agricultural Resources, 477 Mass. 280, 291 (2017). The CORI statute reads, in relevant part: Section 167: De?nitibns applicable to Secs7811 Section. l67. The" following words shall, whenever used in this section or in sections 168 to inclusive, have the following meanings unless the context otherwise requires: a: r- ?Crim-inal offender record. information?, records and data in any communicable form compiled by a'M?as'sachusetts- criminal justice agency which concern an identi?able individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-t'rial proceeding,- other judicial proceedings, previous. hearings conducted pursuant to section 5 8A 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 that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related . . c. 6, 167 (emphasis added). The key dispute involves the bolded text. To de?ne that language, the Supervisor relied upon DCJIS regulation, 803 Code Mass. Regs. 203(3), which de?nes ?initiation of criminal proceedings? as ?the point when a criminal. investigation is suf?ciently complete that. the investigating of?cers take actions toward bringing a speci?c suspect to court.? DCJ IS has authority ?to promulgate rules and regulations to carry out the provisions of this section.? GL. c. 6, 172(n). The Supervisor found that the information that. Wallack. requested fell within the regulation?s de?nition. The regulation is somewhat elastic. It turns on information that may .not be readily available to the requester, may be malleable, and may turn on nebulous questions of intent.1 If the initial call to. 1 The ?suf?ciently complete? test is subjective. The concept of ?actions toWard bringing? appears to turn upon the of?cers? purpose in taking certain actions. These uncertainties, not apparent in the 6 the police, or police ?stop, identi?es a. speci?c person who.- committed a crime, everything the police do arguably qualify as ?actions toward bringing a speci?c suspect to court? even though a criminal complaint or indictment may be well in the future. The regulation?s broad potential reach might well qualify the contested records as CORI, although a more limited construction might not. DCJIS and the Supervisor have adopted the broader construction This regulation is entitled to the same deference given a statute. See Massachusetts Fed?n of Teachers, AFT, v. Board of -Educ., 436 Mass. 763, 771 (2002). interpretation of its own regulation is entitled to ?considerable deference.? Rasheed- v. Commissioner of Corn, 446 Mass. 463, 475?477 (2006); Ten Local Citizen Group v. New England Wind, L-.L.-C-., 457 Mass. 222, 228 (2010). It cannot overturn the agency?s interpretation unless construction was ?arbitrary, unreasonable, or inconsistent with the plain terms of the regulation itself.? Warcewicz v. Department of Environmental Protection, 4-1.0 .Mass. 548, 550 (1991). In Warcewicz, the Court rejected interpretation of its own wetlands regulation, saying that the ?principle is deference, not abdication, and courts will not hesitate to overrule if .agency interpretations are arbitrary, unreasonable, or inconsistent with the plainterms of the regulation itself.? in. Given the elasticity of the regulation, the Court cannot say that the agency interpretation is unreasonable- The Globe therefore cannot prevail unless the regulation is inconsistent with the statute. Here, the Court applies. a very deferential test. A duly adopted regulation ?has the .force of law and must be accorded all the deference due to a statute.? Borden, Inc. v. Commissioner of Public Health, 3-88 Mass. 707, 723, appeal dismissed, 464 US. 923, cert. denied, 464 U. S. 936 (1983'). See M?s, Federation of Teachers, AFT, AFL-CIO v. Board of Education, 436 Mass. 763, 771-772 (2002); City statute, could lead to inconsistent application and create a temptation to withhold embarrassing records that might not be withheld under a bright line test. 7 of Quincy v. Mass. Water Resources Auth, 421 Mass. 463 (1995); Nuclear Metals, Inc. v. Low? Level Radioactive Waste Management Bd., 421 Mass. 196 (19-9-5). Worcester Sand Gravel Co. v. Board of Fire Prevention Regulations, 400 Mass. 464 (.1987). A court ?must apply all rational presumptions? in favor of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate.? 1Q. Accord, Arthur D. Little, Inc. v. COmmissioner of Health Hospitals of Cambridge, 395 Mass. 535, 553-554 (1985) Here, the legislatiVe mandate specifically ?restrict[s]? the reach of any attempt to de?ne CORI. There is no broad delegation to DCJIS to ?ll in the interstices of this statute. Compare Mass. Federation of Teachers, AF T, AFL-CIO v. Board of Education, 4316 Mass; 763, 774 (2002) ("broad construction to further the legislature?s goal of eduC-ation reform). The regulation therefore cannot survive unless it rests upOn a plausible de?nition of the statutory language, particularly the words ?initiation? and ?proceedings? as incorporated in the phrase ?recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto.? The defendants have not cited any statute or case law de?ning these words in a manner consistent with the DCJ IS regulation. The Globe has (Mem. at 7. The Merriam-Webster Internet Dictionary de?nes ?initiationinstance of 'initiating/ the process of being initiated.? In turn, it" de?nes ?initiate?- as to cause or facilitate the beginning of set going.? See also Webster?s Unabridged Dictionary of the English Language (Deluxe ed. 1994) (?Initiate? means ?to begin, set going or originate?) Concise Oxford. American Dictionary (?initiate .. . . 1 cause (a process or action) to begin . . These de?nitions focus upon actually beginning the event, not just reaching the point of taking steps to begin the event. Here, the event is ?criminal proceedings.? The same dictionary de?nes ?proceeding? as legal action a divorce. proceeding 2: PROCEDURE 3. proceedings plural EVENTS, 4: 5.. proceedings plural anof?cial record of things said or done.? The most pertinent part of this de?nition is the ?rst de?nition, ?legal action,? which most logically applies to the. beginning of court proceedings. See also Black?s Law Dictionary (10th ed. 2014) (?Criminal proceedings? mean a ?judicial hearing session or prosecution .-.. Because it involves the plural, the third de?nition also arguably could apply. If so, the context makes the meaning. clear. The ?events? or ?happenings? must be something that. begins gets That is true of a criminal court case. It is not true of ?tak[:ing] actions toward bringing a speci?c. suspect to court,? which occurs in the midst, or toward the end, of an investigation, but nOt yet at the commencement of the criminal case. As the Globe points out, there are Well-settled rules that govern initiation of criminal proceedings. These rules use some. of the same words that appear in the CORI de?nition (and in the dictionary de?nitions of those words) - which is no coincidence. Thus, criminal proceeding shall be commenced by the District Court by a complaint and in the Superior Court by an indictment . . Mass. R. Crim. P. 3(a) (emphasis added). The. Reporters Notes to Mass. R. Crim. P. state: ?It is only the issuance of a complaint or an indictment that begins the criminal process, initiates a defendant?s right to counsel under the Sixth Amendment to the United States Constitution, and tolls the statute (Emphasis added). See also Eagle?Tribune Pub. Co., v. Clerk-Magistrate of the Lawrence Div. of the Dist. Ct. Dept, 448 Mass. 647, 647-648 (2007) (?Show cause hearings . . . precede the formal initiation of criminal prosecution . . The plain language of the CORT de?nition, as used in Court Rules, case law and dictionaries, simply does not permit the regulation?s interpretation.- The regulation is invalid because ?its provisions cannot in ?any appropriate way, be interpreted in? harmony with the legislative mandate.? Student No. 9 v. Board of Education, 440 Mass. 752, 76-3- (2004).2 In this context, ?an ?incorrect interpretation of a statute . . .. is not entitled to deference? . . . In discerning a statute?s meaning, [w]e interpret the words used in a statute with regard to both their literal meaning and the purpose and history of the statute within which they appear.? Atlanticare Medical Center VI. Commissioner of the Division of Medical Assistance, 439 Mass. 1, 6 (2003). If any doubt remained, the statute establishes a clear ?presumption that the record sought is public? and places the burden on'the record?s custodian to ?prove with speci?city the exempt-ion which applies? to withheld documents.? Suffolk Constr. Co, .Inc. V. Division of Capital Asset 2' See also Moot v, Department of Environmental Protection, 448 Mass. 340, 353 department. has exceeded its authority by promulgating a- regulation that relinquishes its obligations under G.L. c. 91. . Atlanticare- Medical Center v. Commissioner of theDivi'sion of Medical Assistance, 439 Mass. 1 (2003); Greater Boston Real Estate-Board v. Department of Telecommunications and Energy, 438 Mass. 197 .205 (2002) (rejecting the agency?s definition of ?utility? as beyond its authority); Leopoldstadt, Inc V. Commissioner of the Division of Health Care Finance Policy, 436 Mass 80 (2002) (rate regulations invalid for failure to comply with the plain language authorizing promulgation of the rates); Massachusetts Hospital Association v. Department of Public Welfare, 412 Mass, 340 (1.992) (statute authorizing regulations to establish ?criteria? for credit and collection policies does not authorize promulgation of ?performance standards?); Telles V. Commissioner of Insurance, 410 Mass. 560 (1991) (invalidating regulations designed to prohibit sex discrimination on the ground that a. statute appeared to require the allegedly discriminatory practice ?and the agency could not use; regulations to enforce its View of the constitution); Steinbergh V. Rent Control Board of Cambridge, 410 Mass. 160 (1991) (invalidating regulation affecting sale of rent c-Ontrolled property); Sturdy V. SOMWBA, 409 Mass. 587 (1991) (agency had no inherent authority, absent statutory authorization, to adopt regulatiOns); Arlington Housing Authority V. Secretary of Communities DevelOpment, 409 Mass. 354 (.1991) (regulations establishing priorities for rental assistance based on need con?icted with preferences. stated in the statute and was invalid); Greater Boston Real Estate Board V. Board of Registration of Real Estate Brokers Salesme?n, 405 Mass. 360 (1989) (narrow grant of regulatory authority led. to conclusion. that the-Board lacked power to promulgate regulations about deposits an aspect of sales contracts negotiated between. buyer and seller); Life Ins. Assoc. of Mass. Commissioner of Insurance, 403 Mass. 410 (198 8) (Regulation prohibiting testing for HIV went beyond specific rulemaking authority to promulgate regulation of policy forms and content). 10 Planning and Management, 449 Mass. 444, 447, 454 (2007) (quoting G.L. 66, The record on summary judgment does not meet that burden. as. to the withheld documents. Moreover, the statutory exemptions to mandatory? disclosure in the public records law ?must be strictly construed.? Attorney General v. A-ss?t Commit of the Real Property Dep?t of Boston, 380 Mass. 62.3, 62-5 (1980). Of course, the inapplicability .of the CORI statute does not automatically make booking photos, police reports and the like s-ubj ect to production under public records requests. Other exemptions may apply, if, for instance, the document's would cause an unreasonable in'vasionof privacy, include information keep private by other statutes (such as information relating to incapacitated persons, domestic violence or victims of sexual assaults) or they are investigative records necessarily compiled out of the public view. G.L. c. 4, j? 7 (clause G.L. c. c. 41,. 98F. No such exemption is claimed in this case, however. II. The Globe?s request for chronological inmate logs of individuals currently inCarcerated for criminal offenses raises different issues. The de?nition of criminal offender record information includes records and data relating to the ?incarceration, rehabilitatiOn or release? of an individual. G.L. c. 6, 167. However, a different section of the CORI Act states that ?[n]otwithstanding_ any other provisions of this section, information indicating custody status and placement within the correction system shall be available to any person upon request.? G.L. 6, 172(i). Similarly, ?[a]ny member of the general public may upon written request to the department and in accordance with. regulations established by the department obtain the following criminal offender record information on a subject: . . . (ii) information indicating custody status and placement within the correction- system for an individual who has been convicted of any offense and sentenced to any term 11 of imprisonment, and at the time of the request: is serving a sentence of probation or incarceration, or. is under the custody of the parole board.? G.L. c. 6, The Globe?s request falls- within the scope of these. provisions. It has not sought information beyond ?custody status and placement?, such as prison incident reports (Massachusetts Correction Of?cers Federated Union v. Department of Correction, 76 Mass. App. Ct. 111, 920 326 (2010)) or prison disciplinary reports. Hastings v. ?Commissioner of Correction, 406 Mass. 898,- i899 (1990). The Commonwealth?s brief does: not address the statutes just cited. It does, however, devote substantial attention to the facts regarding dissemination of this information to Appriss, Inc., While refusing to disclose it to the. Globe. The point is not that providing the information to Appriss makes- Iit public. Rather, it is that such disclosure calls into question whether the information is protected from disclosure in the first place and Whether there is a constitutional equal protection problem with disclosing to one recipient but not to the press, The Court does not reach any constitutional question, but does consider disclosure to Appriss as inconsistent with the position DOC takes in this case that it cannot. disseminate this information. Because G.L. c. and G.L. c. 6, make the information indicating custody states and placement within the correction system, as set forth in the chronological inmate logs ?available to any'person. upon request,? DOC. cannot withhold them from the Globe as CORI. The Town PD has moved to. dismiss this case for lack of subject. matter jurisdiction, because there is no actual controversy under G.L. c. 231A, On the contrary, declaratory relief ?is available to challenge the legality of administrative action even though the action. concerns neither adjudication nor rule making.? .12 In Village-s Dev. Co. v. Secretary of the Executive Of?ce of Envtl. Affairs, 410 Mass. 100, 106 (1991), the Supreme Judicial Court articulated f0ur requirements for maintaining a declaratory judgment action: To secure. declaratory relief in a case involving administrative actiOn, a plaintiff must show that (1) there is an actual controversy; (2) he has standing; (3) necessary parties have been joined; and (4) available administrative remedies have been exhausted. 1d. The Globe mus-t show that it has a ripe, actual controversy regarding the request for public records which is likely to lead to litigation unless resolved by declaratory judgment. See generally Libertarian Ass?n of Mass. Secretary of the. Commonwealth, 462 Mass. 538, 546-647 (2012). The sole controversy concerning the Town PD concerned a request for booking photographs and an incident report. The Globe. has now received those documents. Unlike DCJIS, DOC and MSP, the Town PD will not necessarily encounter the same type of dispute in the future. There is no actual controversy between the Globe and the Town PD .on the issues in the complaint. IV. The Globe has properly abandoned its request for injunctive relief, because declaratory relief is suf?cient. Where, as here, the Court enters a-declaration under G. L. c. 231A, 2, declaring an administrative practice or procedure. unlawful, the plaintiff or any other person with standing may seek further relief or may ?le ?a petition for contemptParticularly in light of those consequences, the Court relies upon the good faith of executive branch of?cials to comply with the law, once declared by the Court. See Massachusetts Coalition for the Homeless v. Secretary of Human Servs., 400 .806, 825' (1987) has been our practice to assume that public officials will comply with. the law declared by a court. . . Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415', 425 n.18 (1988) may appropriately assume that public of?cials will act in accordance with their judicially de?ned duties, even when the individuals involved are other than the 13 plaintiffs in the original action?). This case has certainly not reached a point Where judicial injunctions are necessary, let. alone where the Courts may prescribe how the defendant's should exercise their discretion. See Perez v. Boston Hous. Auth, 379 Mass. 703, 739-740 (1980) (judicial intervention appropriateWhere public officials ?persist[ in indifferenceto, (Jr-neglect. or disobedience of ocurt orders?). In these circumstances, declaratory relief alone is the appropriate remedy at this time. CONCLUSION For the above reasons: 1. Plaintiff?s Motion. for Summary Judgment (Docket #15) is ALLOWED. 2. The State Defendants? Motion for Summary Judgment (Docket #17) is DENIED. 3. Defendant North Andover Police Department?s . . Cross-Motion for Summary Judgment (Docket #16) is DENIED. 4. Defendant Boston Police Department?s . . Cross?Motion. to. Plaitniff?s Motion for Summary Judgment (Docket #19) is DENIED. 5. The Complaint against North Ando'ver Police Department is dismissed for lack of subject matter jurisdiction to enter declaratory relief in the absence of an actual controversy. 6. The Conrt declares that. the Criminal Record Information Act, G.L. c. 6, 167 et seq., does. not prohibit the defendants from providing public access to booking photographs of police of?cers arrested for alleged crimes; police incident .reports involving public of?cials; and chronological. inmate logs of individuals currently incarcerated for criminal offenses, and that such records therefore are not exempt from the Public Records Law under G.L. c. 4, 7, cl. 26(a). 14 7. The Clerk shall enter" judgment for the Plaintiff on Counts against all defendants except the North Andover Police Department. and. for the defendants on Count dismissing that count as moot. e" Dated: December 4, 2017 Douglas H. Wilkins 3.5