In a blunt memo to state and local police agencies, the Supervisor of Public Records in 2003 set out the law: “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, [the custodian] 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.” SPR Bulletin 3-03, Public Record Requests and C.O.R.I. (Nov. 21, 2003).
“There is little doubt that MOST police records are public records and must be available to anyone upon request,” the Supervisor’s 2003 memorandum continued. “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.” Id. The 2003 memo concludes: “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.” Id.
The Supervisor had released the memorandum in response to “a troubling trend within the police community” of citing the Criminal Offender Record Information law, G.L. c. 6, § 167, as supposed justification to avoid disclosing public records. Id. It provides police departments a checklist, noting that information may not be withheld under CORI if any of the following apply: it pertains to a crime for which jail time is possible; concerns “evaluative information,” typically used in connection with bail, sentencing, or probation proceedings; concerns “intelligence information,” such as surveillance reports; does not pertain to an “identifiable individual” who is alive; is limited to aggregated statistical or analytical data; or was not recorded as a result of the initiation of criminal proceedings such as a criminal charge, arrest, pre-trial proceeding, or other judicial proceeding. Id. at 1-3.