Emory Snell, Jr. v. Executive Office of Public Safety and Security - Department of Correction (SPR 20161224)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A Williams ' Supervisor ofR ecords December 23, 20 16 SPR16/1223; SPR16/1224 Jeanine Roth Department of Correction MCI- Concord 965 Elm Street, P.O. Box 9106 Concord, MA 01742-9106 Dear Ms. Roth: I have received the petition of Emory Snell appealing the responses of the Department of Correction (Department) to requests for public records. G. L. c. 66 § lO(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Snell requested records pertaining to a specific "appeal" (SPR1611223) and correspondence between the Department and a specific individual (SPR16/1224). In two (2) responses dated December 8, 2016, the Department denied his requests, claiming that the responsive records are exempt from disclosure under the Criminal Offender Record Information (CORI) Act as 1t operates through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a); G. L. c. 6, § 167. 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, § lO(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 of the responsive record. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a 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

Jeanine Roth SPR16/1223; SPR16/1224 Page 2 December 23, 2016 request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. Based on the December 8 responses, it is unclear how the CORI Act applies to withhold the entirety of the responsive records from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281,289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). Content of the record It should be noted that the personal status of Mr. Snell does not afford any greater right of access to the requested information, as 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. Snell's status plays no role in whether a requested record is public or is exempt from disclosure. Rather than request records under the Public Records Law, Mr. Snell is advised to request access to records pursuant both to the CORI Act as well as any relevant Department regulations permitting access to records. I advise the Department to refer Mr. Snell's future requests to the appropriate superintendent for review and response pursuant to such regulations. I understand an attorney on my staff contacted you about these appeals. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Snell with a response to the request, provided in a manner consistent with tbis order, the Public Records Law and its Regulations. A copy of any such response must be pr.ovided to tbis office. It is preferable to send an electronic copy oftbis response to this office a e(a)se .state.ma.us. cc: Emory Snell