Bonita Tenneriello, Esq. v. Executive Office of Public Safety and Security - Department of Correction (SPR 20160325)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervism· ofR ecords June 3, 2016 SPR16/325 Mr. William D. Saltzman, Esq. Department of Correction ~~~----------begal-9iv-isietJ:----------------------------------- 70 Franklin Street Boston, MA 02110-1327 Dear Attorney Saltzman: I have received the petition of Bonita Tenneriello, Esq. of Prisoners' Legal Services appealing the response of the Department of Corrections (Department) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, in June 2015, Attorney Tenneriello requested a copy of the Department's monthly rosters or spreadsheets that the Department maintains for its Special Management Units, redacted of personally-identifiable information of the Department's inmates. The Department denied Attorney Tenneriello's request in its entirety pursuant to Exemption (a) and the Criminal Offender Record Information Act (CORI) and Fair Information Practices Act (FIPA). Attorney Tenneriello appealed both your 2015 denial, and your February 10,2016 denial. Prior appeal As a result of Attorney Tenneriello's prior appeal in December 2015 for the same records, on February 5, 2016 I found that the Department had failed to meet its burden of proving that the CORI Act would allow the Department to withhold the responsive rosters in their entirety. I ordered the Department to prove that the rosters cannot be redacted of personally identifying information of inmates in the Department's correctional facilities. See 16/022 Determination of the Supervisor of Records (February 5, 2016). In its February 10, 2016 response to Attorney Tenneriello and copied to this office, the Department again states that the rosters cannot be provided pursuant to CORI, PIP A and due to a US District Court protective order that is still in effect. The Department has held that the CORI Act does not allow for redaction of information, where the record is classified as CORI. The Department has also claimed that certain of the information relate to mental health status of inmates and would trigger the privacy exemption in the Public Records Law. Attorney Tenneriello appealed the February 10,2016 response. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. William D. Saltzman, Esq. SPR16/325 Page2 June 3, 2016 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). Exemption (a) The Fair Information Practices Act (FIPA ) Th Department cited the Fair Information Practices Act (FIP A) in denying access to public records. Accordingly, Exemption (a) of the Public Records Law merits consideration. Exemption (a), known as the statutory exemption, applies to materials 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 of Lynn, 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 ofEnvironmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). FIPA imposes restrictions on the dissemination of"personal data." G. L. c. 66A, § 2(c). "Personal data" is defined to include:

Mr. William D. Saltzman, Esq. SPR16/325 Page 3 June 3, 2016 any information concerning an individual which, because of name, identifying number, mark or description can be readily associated with a particular individual; provided, however, that such information is not contained in a public record, as defined in clause Twenty-sixth of section seven of chapter four and shall not include intelligence information, evaluative information or criminal offender record information as defined in section one hundred and sixty-seven of chapter SIX. G. L. c. 66A, §1 -------'fhe-definition-of-'-'personal-data"-cun1:airre-d-i:I!FfFA---expn:ssty-~xcludes information contained in a public record. G. L. c. 66A, § 1. FIP A and the Public Records Law are to be construed to work together consistent with the legislative purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. As the Department has not cited an exemption to permit nondisclosure of records it deems "personal data," I find it has not met its burden of specificity to justify nondisclosure of such information. Criminal Offender Record Information Act (COR!) The applicable statute that permits the Department to withhold certain of the information within the content of the records pursuant to Exemption (a) is the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167. CORI, which is statutorily exempt from disclosure, is defined as: [A]ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, 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 thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. G. L. c. 6, § 167 While the Department has stated access to CORI must be gained through application to the Department of Criminal Justice Information Services, the record Attorney Tenneriello requested is not CORI in its entirety. Any CORI within the content of the records must be segregated (redacted) prior to disclosure; the balance of the information must be disclosed to the extent it does not specifically identify a person.

Mr. William D. Saltzman, Esq. SPR16/325 Page 4 June 3, 2016 I find the Department has failed to properly respond to a request for public records. Accordingly, the Department is hereby ordered to provide Attorney Tenneriello with the responsive monthly rosters without delay, provided in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must provide to Attorney Tenneriello a written explanation, with specificity, how a particular exemption applies to each record or each portion of a record. To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and in responding to requests for public records, I advise a review of 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 determination for further information. cc: Ms. Bonita Tenneriello, Esq.