Jose L. Negron v. Department of Correction (SPR 20170211)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records February 23, 2017 SPR17/211 Sheryl F. Grant, Esq. Legal Counsel Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Attorney Grant: I have received the petition of Jose L. Negron appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Negron requested a copy of Department policies: 103 DOC 514 (Security Threat Group Management) and 103 DOC 527 (Security Risk Inmates). The Department's response states that the regulations have been withheld from public disclosure ' pursuant to Exemptions (b), (f) and (n) of the Public Records Law. Mr. Negron appealed. Right ofA ccess Mr. Negron states in his January 15, 2017 request letter that the requested sections of the Department's regulations are essential to his defense in an inmate federal court lawsuit that is currently pending. Mr. Negron should be advised that his personal status in a pending court matter does not afford him with any greater right of access than any other individual within the public realm. 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). Therefore, Mr. Negron's status will have no bearing on whether the records are subject to mandatory disclosure under the Public Records Law. I also note that the appeal process shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means. 950 C.M.R. 32.08(1)(a) (2017 Ed.) 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

Sheryl F. Grant, Esq. SPR17/211 Page 2 February 23, 2017 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, § lOA(d); 950 C.M.R. 32.03(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(b)(iv), 950 C.M.R. 32.06(3); see also Dist. 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. Exemption (b) In its January 24, 2017 letter, the Department indicated its intent to withhold the records pursuant to Exemption (b) of the Public Records Law. Exemption (b) permits the withholding of records that are: related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7 (26)(b) There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom oflnformation Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity

Sheryl F. Grant, Esq. SPR17/211 Page 3 February 23, 2017 codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). In Massachusetts, the records access officer or custodian normally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. The Department posits that public disclosure could result in circumvention of safety and security measures of not only Department personnel but the inmate population and the public-at-large. Access to the specific regulations requested would allow inmates and the public to be aware of the measures that may be taken for any particular threat or vulnerability to safety and security of the facility population and facility itself. "[T]he Commissioner of the Department of Correction shall, make and promulgate necessary rules and regulations incident to the exercise the powers and performance of his duties." G. L. c. 124, § 1. A review by this office of the Massachusetts Code of Regulations, pertaining to Security Threat Groups and Security Risk Inmates, reveals that these sections of the Department's regulations are not available for public viewing and are restricted. Therefore, I find that the Department may properly withhold the requested regulations pursuant to Exemption (b ). Accordingly, whereas I find that the Department has met its statutory and regulatory obligation of supporting its Exemption (b) claim to withhold the requested regulations from public disclosure, this appeal is closed. Sincerely, ~n~ Rebecca S. Murray Supervisor of Records cc: Jose L. Negron