Robert Cantell v. Department of Correction - Legal Division (SPR 20180229)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 7, 2018 SPRlS/229 Patrick T. Depalo, Jr. Chief of Police Department of Correction Office of Investigative Services 50 Maple Street, Suite 3 Milford, MA 01757 Dear Chief Depalo: I have received the petition of Robert Cantell appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Cantell requested a copy of written complaints, incident reports and IMS entries filed against an identified correctional officer who worked at the Department's Massachusetts Treatment Center from 2005 to 2012. In a January 9, 2018 response, the Department denied Mr. Cantell's request pursuant to the Criminal Offender Record Information Act (CORI) as it operates through Exemption (a), the personnel clause of Exemption (c), and Exemptions (f) and (n) of the Public Records Law. Unsatisfied with the response, Mr. Cant ell petitioned the Supervisor of Records and this appeal was opened. 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 c. order to withhold a requested record. G. L. 66, § 10(b)(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 950 C.M.R. 32.06(3); see 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

Chief Patrick T. Depalo, Jr. SPR18/229 Page 2 March 7, 2018 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). The Department's January 9th response In its January 9th response, the Department first asserts that "[p] roviding Mr. Cantell with any of the responsive records which pertain to either an inmate or staff complaint against an identified correctional officer existed, turning over such a document to an inmate under the care and custody of the Department in a facility where the identified correctional officer currently works would create climate and security issues. As the disclosure of any such documents is likely to prejudice the possibility of effective law enforcement and jeopardize public safety, the requested material is exempt pursuant to Exemptions (f) and (n)." Secondly, the Department asserts that if any documents exist, the documents would contain personnel information relating to an identifiable individual, which is exempt under Exemption (c). Finally, the Department indicates that if any documents exist and involve inmates other than Mr. Cantell, the document would contain CORI and evaluative information pertaining to another individual, which is not public and exempt under Exemption (a) as CORI, G. L. c. 6, §§ 167, 171 and Department Regulations, 103 CMR157.07 and 103 CMR 157.08. Exemption (a) Exemption (a), known as 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 confidential" or "shall not be subject to the disclosure provision ofthe Public Records Law." The second category under the exemption includes records deemed exempt under statute by necessary implication.

ChiefPatrick T. Depalo, Jr. SPR18/229 Page 3 March 7, 2018 Criminal Offender Record Information The Department has claimed that the responsive records may contain CORI pertaining to inmates other than Mr. Cantell. CORI, which is statutorily exempt from disclosure, is defined as: [A] ny records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, or other judicial proceedings, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to that recorded as the result of the initiation of criminal proceedings or any consequent proceedings related thereto. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information G. L. c. 6, § 167. The Department has claimed that the CORI Act allows the Department to withhold any complaints that were filed against an identified correctional officer by inmates other than Mr. Cantell because the records may contain CORI. I find that the Department has not met its burden to establish that the records may be withheld in their entirety under the CORI Act. Any non exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § 1 0( a). Moreover, the Department has asserted that the records may contain "evaluative information" of other inmates, therefore, the Department has claimed that CORI allows the Department to withhold the record. However, the CORI Act does not restrict evaluative information from disclosure, consequently, I find that the Department may not withhold the evaluative information pursuant to CORI, as it operates through Exemption (a). Exemption (c) The Department has claimed that any complaints against the identified correctional officer would contain personnel information relating to an identifiable individual and are protected from disclosure under the personnel clause of Exemption (c). Exemption (c) applies to: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7 (26)(c). Exemption (c) contains two distinct and independent clauses, each requiring its own

ChiefPatrick T. Depalo, Jr. SPR18/229 Page 4 March 7, 2018 analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause, relevant to this appeal, creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Massachusetts courts have found that "core categories of personnel information that are 'useful in making employment decisions regarding an employee' may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, "employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee," may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). Nevertheless, there is a strong public interest in monitoring public expenditures and public employees have a diminished expectation of privacy with respect to public employment matters. See George W. Prescott Publ'g Co. v. Register of Probate for Norfolk Cnty., 395 Mass. 274, 278 (1985); Globe Newspaper Co., 388 Mass. at 436 n.15. Further, the public has an interest in knowing whether public employees are "carrying out their duties in an efficient and law-abiding manner." Attorney Gen. v. Collector of Lynn, 377 Mass. 151, 158 (1979). As a result, certain information that is considered personal in the ordinary sense of the word may be considered part of a public record if relating to an individual's official responsibilities. See Brogan v. School Comm. of Westport, 401 Mass. 306, 309 (1987). The Department's response indicates that personnel information will be contained within the content of the requested records. However, the Department has not explained what particular information is contained within the records that would allow the Department to withhold the records in their entirety under the personnel clause of Exemption (c). I find that the Department has not met its burden in specifically claiming the first clause of Exemption (c) by not explaining what information, constitutes a core category of personnel information. See Wakefield, 431 Mass. at 798. Exemption (f) The Department asserts that if the records are provided it will jeopardize effective law enforcement. It claimed Exemption (f) to withhold the requested records in their entirety. Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in

Chief Patrick T. Depalo, Jr. SPR18/229 Page 5 March 7, 2018 order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be ·prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). An investigative agency is not required to demonstrate prejudice to withhold the identities of voluntary witnesses, informants, or complainants. Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by-case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See id. at 289-90. It is unclear whether confidential investigative techniques were used; if the records include the identities of voluntary witnesses, informants or complainants or how release of the records would prejudice effective law enforcement. The Department did not provide sufficient support for its assertion that disclosure of the records, even in a redacted format, would so prejudice the possibility of effective law enforcement that disclosure is not in the public interest. Exemption (n) The Department has also claimed Exemption (n) to withhold the records in their entirety. Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under su~section (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7 (26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist would find useful to maximize damage." People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is likely to jeopardize public safety." Id. at 289-90. The PETA decision further provides that "[b ]ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the

Chief Patrick T. Depalo, Jr. SPR18/229 Page 6 March 7, 2018 custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. The Department did not provide any explanation as to how release of the requested complaints, even in a redacted format, will jeopardize public safety. The inquiry the Department must consider is whether, and to what degree, the record is one a terrorist would find useful to maximize damage, and would a reasonable person agree with the custodian's determination. The Department has not provided any factual heft to withhold the records in their entirety pursuant to Exemption (n). I find that the Department has not met its burden of specificity in claiming Exemption (n). Obligation of the Department in responding The Department did not meet its burden by not identifying whether the Department actually possesses records responsive to the request. G. L. c. 66, § IO(b)(ii) (written response must "identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves"). The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department did not satisfy its burden in responding to this records request. The Department must also explain why any non-exempt, segregable portions of the responsive records cannot be provided. Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also Flatley, 419 Mass. at 511. A Public Records Division staff attorney contacted you to discuss this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Cantell with responsive records, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (1 0) 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. The Department may request a reconsideration of this determination within 10 business days of the date of this letter. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Robert Cantell