Pasqua Scibelli v. Sex Offender Registry Board (SPR 20180209)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 1, 2018 SPR18/209 William Burke, Esq. General Counsel Sex Offender Registry Board P. 0. Box 4547 Salem, MA 01970 Dear Attorney Burke: I have received the petition of Pasqua Scibelli, Esq. appealing the response of the Sex Offender Registry Board (Board) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on December 7, 2017, Attorney Scibelli requested "[t]he list of all finally classified level 1 offenders convicted or adjudicated of a 'sex offense involving a child,' as defined in G.L. c.6, section 178C, with each individual's corresponding sex offense(s), dates of conviction or adjudication for the sex offense(s) and dates of birth." Attorney Scibelli indicated that the Board may designate a random number or pseudonym to each individual in order to protect confidentiality. The Board provided responses on December 26, 2017 and January 11, 2018 which included portions of the responsive records. The Board denied access to certain portions under G. L.'c. 6, §178D; G. L. c. 6, § 178J; and G. L. c. 6, § 178(K)(a), as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Claiming the Board's responses are partially responsive, Attorney Scibelli petitioned this office and this appeal, SPR18/209, 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, § 10A(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. 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

William Burke, Esq. SPR18/209 Page2 March 1, 2018 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board's December 26th and January 11th responses In its December 26, 2017 response, the Board indicated that it redacted dates of birth because they are exempt from disclosure by statute, G. L. c. 6, §§ 178D and 178J. After the Board's objection to providing the dates of birth of offenders, Attorney Scibelli revised her request to include "current age or year of birth." The Board responded on January 11, 2018, and indicated that it "does not maintain a record responsive to that request, specifically, the current age or year of birth for level 1 offenders. Notwithstanding, identifying information on level 1 offenders is not available to the public. G. L. c. 6, §§ 178D, J and K(2)(a)." Exemption (a) The Board denied access to portions of responsive records pursuant to G. L. c. 6, § 178D; G. L. c. 6, § 178J; and G. L. c. 6, § 178(K)(a), as they operate through Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Exemption (a), 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 Gen. v. Collector of Lynn, 377 Mass. 151, 54 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-46 (1977). This exemption creates two categories of exempt records. The first category includes records that are specifically exempt from disclosure by statute. Such statutes expressly state that such a record either "shall not be a public record," "shall be kept

William Burke, Esq. SPR18/209 Page 3 March 1, 2018 confidential" or "shall not be subject to the disclosure provision of the Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication. Such statutes expressly limit the dissemination of particular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. The Board has cited G. L. c. 6, § 178D; G. L. c. 6, § 178J; and G. L. c. 6, § 178(K)(2)(a) as applicable to withhold the records pursuant to Exemption (a). The statutes provide in pertinent parts: Establishment and Maintenance of Sex Offender Registry The sex offender registry board, known as the board, in cooperation with the department, shall establish and maintain a central computerized registry of all sex offenders required to register pursuant to sections 178C to 178P, inclusive, known as the sex offender registry .... The file on each sex offender required to register pursuant to said sections 178C to 178P, inclusive, shall include the following information, hereinafter referred to as registration data: (a) the sex offender's name, aliases used, date and place of birth, sex, race, height, weight, eye and hair color, social security number, home address, any secondary addresses and work address and, if the sex offender works at or attends an institution of higher learning, the name and address of the institution; (b) a photograph and set of fingerprints; (c) a description of the offense for which the sex offender was convicted or adjudicated, the city or town where the offense occurred, the date of conviction or adjudication and the sentence imposed; (d) any other information which may be useful in assessing the risk of the sex offender to reoffend; and (e) any other information which may be useful in identifying the sex offender. ... [T]he board shall make the sex offender information contained in the sex offender registry, delineated below in subsections (i) to (viii), inclusive, available for inspection by the general public in the form of a comprehensive database published on the internet, known as the "sex offender internet database"; provided, however, that no registration data relating to a sex offender given a level 1 designation by the board under

William Burke, Esq. SPR18/209 Page4 March 1, 2018 section 178K shall be published in the sex offender internet database but may be disseminated by the board as otherwise permitted by said sections 178C to 178P, inclusive; and provided further, that the board shall keep confidential and shall not publish in the sex offender internet database any information relating to requests for registration data under sections 1781 and 178J: (i) the name of the sex offender; (ii) the offender's home address, and any secondary addresses; (iii) the offender's work address; (iv) the offense for which the offender was convicted or adjudicated and the date of the conviction or adjudication; (v) the sex offender's age, sex, race, height, weight, eye and hair color ... G. L. c. 6, § 178D. Procedures for Making Request for Sex Offender Registry Information; Information Disseminated. If the search of the sex offender registry results in the identification of a sex offender required to register pursuant to this chapter who has been finally classified by the board as a level 2 or level 3 offender under section 178K, the police shall disseminate to the person making the inquiry: (1) the name ofthe sex offender; (2) the home address and any secondary address if located in the areas described in clause (2) or (3) of subsection (b); (3) the work address if located in the areas described in said clause (2) or of said subsection (b); ( 4) the offense for which he was convicted or adjudicated and the dates of such conviction or adjudication; (5) the sex offender's age, sex, race, height, weight, eye and hair color; and (6) a photograph of the sex offender, if available. (7) the name and address of the institution of higher learning where the sex offender works or is emolled as a student, if located in the areas described in clause (2) or (3) of subsection (b) .... G. L. c. 6, § 178J(c). Sex Offender Registry Board Where the board determines that the risk of reoffense is low and the degree of dangerousness posed to the public is not such that a public safety interest is

William Burke, Esq. SPR18/209 Page 5 March 1, 2018 served by public availability, it shall give a level 1 designation to the sex offender. ...T he police shall not disseminate information to the general public identifying the sex offender where the board has classified the individual as a level1 sex offender. The police and the board may, however, release such information identifying such sex offender to the department of correction, any county correctional facility, the department of youth services, the department of children and families, the parole board, the department of probation and the department of mental health, all city and town police departments and the Federal Bureau of Investigation .. G. L. c. 6, § 178K(2)(a). In light of the above, I find that the statutes permit the Board to withhold registration data, including the age and date of birth of level 1 sex offenders from public disclosure. Conclusion Accordingly, whereas I find that the requested information relates to the type specifically exempt from disclosure by statute, I find the Board has met its burden in properly withholding portions of responsive records pursuant to G. L. c. 6, § 178D; G. L. c. 6, § 178J; and G. L. c. 6, § 178(K)(2)(a), as they operate through Exemption (a) of the Public Records Law. This administrative appeal is now closed. If Attorney Scibelli is not satisfied with the resolution ofthis administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth .. See G. L. c. 66, §10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Pasqua Scibelli, Esq.