Cruthird, Dwayne v. Massachusetts Parole Board (SPR 20140780)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of& cords March 13, 2015 SPR14/780 Mr. Peter M. Mimmo, Esq. Executive Office ofPublic Safety and Security Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Mimmo: I have received the petition of Dwayne Matthew Cruthird appealing the response of the Parole Board (Board) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Cruthird requested a copy of"a log or record" that disclosed the identity oftwo persons Mr. Cruthird believed were Department of Corrections staff members in attendance at a parole hearing that took place on October 22, 2014. In a written response, the Board provided Mr. Cruthird with the name of one staff member, identified by the Board as "a Research Analyst employed by the Department of Correction (DOC)." The Board withheld the name of the second person, identified by the Board as "an intern from the Research & Planning Division of the DOC," citing Exemption (p) of the Public Records Law. G. L. c. 4, § 7 (26) (p). Mr. Cruthird appealed the withholding ofthe intern's name, further requesting in his petition to this office the work address of the two persons subject to his request. Whereas the latter was not part of his request to the Board I decline to opine on the request for work addresses. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). One Ashburton Place, Room 1719, Boston, Massachusetts 02108. (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Peter M. Mimmo, Esq. SPR14/780 Page Two March 13, 2015 Exemption (p) The Board has claimed that Exemption (p) applies to withhold the name of an intern who attended the parole hearing. Therefore, Exemption (p) merits consideration. It allows the record custodian to withhold: the name, home address and home telephone number of a family member of a commonwealth employee, contained in a record in the custody of a government agency which maintains records identifying persons as falling within the categories listed in subclause ( o) G. L. c. 4, § 7 (26)(p). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The response that the Board provided did not contain the specificity required in a denial of access to public records. Accordingly, the Board is advised that to comply with the Public Records Law and Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. While you attempted to satisfy this burden in a conversation with a member of my staff, this does not abrogate the burden to respond to the requester and cite, with specificity, the applicability of the exemption to the responsive records. Accordingly, the Board is hereby ordered, within ten (10) days, to provide Mr. Cruthird with the requested records. If the Board maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. C uthird a written explanation stating, with specificity, how a particular exemption app es to each record. This administrative appeal is now closed. cc: Mr. Dwayne Matthew Cruthird