Dennis M. Foster v. Middlesex County Sheriff's Office (SPR 20171136)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 1, 2017 SPR17/1136 Malav Patel Paralegal Middlesex Sheriffs Office 400 Mystic A venue Medford, MA 02155 Dear Malav Patel: I have received the petition of Dennis Foster appealing the response of the Middlesex Sheriffs Office (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Foster requested "A copy of the Duty Roster for May 9, 2017 for the 3-11 shift at the Billerica House of Correction and Jail." Unsatisfied with the response, Mr. Foster petitioned this office and this appeal was opened as a result. 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, § IOA(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, § IO(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. Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record 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 requestors. Access to a record 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

Malav Patel SPR17/1136 Page 2 September 1, 201 7 circumstances ofthe requester. See Bougas v. ChiefofPolice ofLexington, 371 Mass. 59,64 (1976). Accordingly, Mr. Foster's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). As such, Mr. Foster may wish to consider another means of seeking to obtain any existing responsive records. July sth response In its July 5th response the Office indicates it "object[s] to [Mr. Foster's] request because the document is exempt from disclosure pursuant to M.G.L. c. 4 § 7 (26) (b) and because the document [Mr. Foster] seeks relates to security procedures within the Middlesex Jail and House of Correction." Exemption (b) 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 government 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, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest. For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. I find the Office has not met its burden of specificity in claiming Exemption (b) of the Public Records Law to withhold the records in their entirety. The July 5th response simply cites Exemption (b) to withhold records rather than explaining its applicability. See Flatley, 419 Mass. at 507 (custodian has the burden of establishing the applicability of an exemption). I understand a member of the Public Records Division contacted you and provided a copy of Mr. Foster's appeal petition.

Malav Patel SPR17/1136 Page 3 September 1, 2017 Order Accordingly, the Office is ordered to provide Mr. Foster with a supplemental response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Rebecca S. Murray Supervisor of Records cc: Dennis Foster