Samuel Hunt v. Executive Office of Public Safety and Security - Department of Correction (SPR 20160246)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April20, 2016 SPR16/246 Mr. Christopher Fallon Director of Communications and Administrative Resolution Executive Office of Public Safety & Security Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Director Fallon: I have received the petition of Samuel Hunt appealing the response ofDepartment of Correction (DOC) to a request for public records. G. L. c. 66 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Hunt requested copies of certain sections of the DOC Employees Rules and Regulations, 103 DOC 220. In a response dated February 23,2016 the DOC denied his request in its entirety pursuant to DOC Employees Rules and Regulations, 103 DOC 220.03, Security Issues. Right ofA ccess In his petition Mr. Hunt indicated he may have a unique right of access to the responsive records. Please note that the personal status of Mr. Hunt in the matter in question does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requesters. Access to a record requested pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Hunt's status will have no bearing on whether the records are subject to mandatory disclosure under the Public Records Law. 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Christopher Fallon SPR16/246 Page 2 April20, 2016 Exemption (a) In its letter, the DOC indicated its intent to withhold the records pursuant to the Security Issues section of its rules and regulations, 103 DOC 220.03. Exemption (a), known as the statutory exemption, permits the withholding of records that are: specifically or by necessary implication exempted from disclosure by statute G. L. c. 4, §7 (26) A governmental entity may use the statutory exemption as a basis for withholding requested materials where the language of the exempting statute relied upon expressly or necessarily implies that the public's right to inspect records under the Public Records Law is restricted. See Attorney General v. Collector ofLynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This office cannot order disclosure of records if a statute mandates nondisclosure. General Chemical Corp. v. Department of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute that permits the DOC to withhold certain records pursuant to Exemption (a) is the Powers and Duties of the Department of Corrections statute, which provides in pertinent part: In addition to exercising the powers and performing the duties which are otherwise given him by law, the commissioner of correction, in this chapter called the commissioner, shall: make and promulgate necessary rules and regulations incident to the exercise of his powers and the performance of his duties G. L. c. 124 § 1(q). The DOC Employees Rules and Regulations Security Issues section provides in pertinent part: The "Rules and Regulations" shall not be made available to any inmate, nor left in any area to which an inmate has access. 130 DOC 22.03. It is, therefore, the finding of this office that the Department may withhold the requested records from disclosure pursuant 130 DOC 22.03 and G. L. c. 124 §1(q) as they operate by way of Exemption (a) of the Public Records Law.

Mr. Christopher Fallon SPR16/246 Page 3 April20, 2016 The DOC is hereby advised that 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 by the DOC did not contain the required specificity. Accordingly, the DOC 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. To assist in responding to future requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determ· ·on for further information. cc: Mr. Samuel Hunt