Derek Wright v. Souza-Baranowski Correctional Center (SPR 20171227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 11, 201 7 SPR17/1227 Vicki Pineda Department of Correction Souza-Baranowski Correctional Center P.O. Box 8000 Shirley, MA 01464 Dear Ms. Pineda: I have received the petition of Derek Wright appealing the response of the Department of Corrections Souza-Baranowski Correctional Center (DOC) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wright requested the "name of the chemical agent product used at the SBCC facility, as well as the name of the manufacturer and distributer" and "[t]he name of the drug testing kits used at the SBCC facility, as well as the name of the manufacturer and distributer." The DOC denied his request, claiming that the responsive record "is exempt from disclosure pursuant to G.L. c. 4 § 7(26)(b)." 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, § 1O (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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Vicki Pineda SPR17/1227 Page 2 September 11, 2017 Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the govermnent 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. In its response, the DOC indicates, "knowledge of the material could prove detrimental to the facility's effort to maintain a secure penal institution." To effectively apply this exemption, the DOC needs to identify and specify how and why the disclosure of these records would hinder the performance of its governmental functions. Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the DOC intends to provide Mr. Wright with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the DOC provide Mr. Wright with the response within ten business days. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Wright may appeal the substantive nature of the DOC's response within ninety days. See 950 C.M.R. 32.08(1 ). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Derek Wright