Henry Clay Manly v. Executive Office of Public Safety and Security - Department of Correction (SPR 20161014)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor of Records November 18, 2016 SPR16/1014 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 Mr. Fallon: I have received the petition of Henry Clay Manly appealing the response of the Department of Correction (Department) to a request for records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on August 22, 2016 Mr. Manly requested a copy of portions of DOC Regulations regarding "Inmate Accountability policy" and the "Security Risk Inmate policy. In a September 1, 2016 response, the Department denied the request pursuant to the Fair Information Practices Act (PIP A), G. L. c. 66A. Mr. Manly appealed. Prior Appeal The requested policies were the subject of a prior appeal. See 16/784 Determination of the Supervisor of Records (October 13, 2016). In my October 13, 2016 determination I closed the appeal with the proviso that the Department would clarify its denial of access to the policies. The Department complied by providing Mr. Manly with an October 24, 2016 response that explains that the policies are not accessible as a public record under Exemption (a) of the Public Records Law, and G. L. 124, § 1 (Powers and Duties of the Commissioner of Correction) and Department Regulations. Mr. Manly petitioned this office for a second time on November 7, 2016. Right ofA ccess In his petitions Mr. Manly indicated that he may have a unique right of access to the responsive records. However, Mr. Manly should be advised that his personal status in the matter in question does not afford him with any greater right of action 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 One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Christopher Fallon SPR16/1014 Page 2 November 18, 2016 circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Therefore, Mr. Manly's status will have no bearing on whether the records are subject to mandatory disclosure under the Public Records Law. 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). 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). 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 oftheresponsive record. Exemption (a) In its October 24 response, the Department cites Exemption (a) as applicable to withhold both the Inmate Accountability policy and the Security Risk policies. 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) 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 of Environmental Quality Engineering, 19 Mass. App. Ct. 287 (Mass. App. Ct. 1985). The applicable statute and regulations that permit the Department to withhold the policies pursuant to Exemption (a) is G. L. c. 124, § 1 (a), (b) and (q), this statute provides: ... [T]hat the Commissioner shall, "make and promulgate necessary rules and regulations incident to the exercise ofhis powers and the performance of his duties."

Christopher Fallon SPR16/1014 Page 3 November 18,2016 The Department informed Mr. Manly that there is no public access to the Department's Inmate Accountability and the Security Risk Inmate policies. 103 C.M.R. 513 and 103 C.M.R. 572 provide that there is no public access to these policies. A review ofthe Code of Regulations regarding the Department reveals that these CMR sections are not available for public viewing and are restricted. Therefore, the Department may properly withhold the policies pursuant to Exemption (a). Accordingly, whereas I find that the Department has met its statutory and regulatory obligation of supporting its Exemption (a) claim to withhold the policies from public disclosure, this appeal is closed. cc: Henry Clay Manly