Emory Snell, Jr. v. Department of Correction - MCI Concord (SPR 20180508)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords April 30, 2018 SPR18/508 Jeanine Roth Records Manager Department of Correction - MCI Concord 965 Elm Street, P.O. Box 9106 Concord, MA 01742 Dear Ms. Roth: I have received the petition of Emory Snell appealing the response of Department of Correction (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Snell requested an "incident report authored by [an identified individual] on 21 March 2018, particularly any records, information, or otherwise supporting such incident reports," and "all other records, reflecting either d-reports or incident reports on that subject matter referenced in that 21 March 2018 Sheppard incident report." The Department denied his request, claiming that the responsive records are exempt from disclosure pursuant to the Criminal Offender Record Act (CORI) as it operates through Exemption (a) of the Public Records Law. G. L. c. 6, § 167; G. L. c. 4, § 7(26)(a). 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. 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

Jeanine Roth SPR18/508 Page 2 April 30, 2018 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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 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 Department cites the CORI Act, G. L. c. 6, § 167, as applicable to withhold responsive records. Please note that an updated definition of CORI is currently in effect. CORI, which is statutorily exempt from disclosure, is defined as: [R]ecords and data in any communicable form compiled by a Massachusetts 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, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. 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 ... Criminal

Jeanine Roth SPR18/508 Page 3 April 30, 2018 offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. C. 6, § 167. Burden ofs pecificity Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1 O(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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify any records, categories of records or portions of records that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories ofrecords, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); 950 CMR 32.06(3)(c)(4). Here, the Department withheld responsive records without identifying the records. Therefore, the Department must identify the type of record(s) it has in its possession that it withheld. Further, the Department's initial response did not contain the specificity required in a denial of access to public records. Instead, the Department's response cites Exemption (a) without any further explanation as to the exemption's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Consequently, I find that the Department has not satisfied its burden in responding to this records request. As stated above, the custodian bears the burden to prove with specificity any exemption that applies. G. L. c. 66, § lO(b)(iv). Additionally, a custodian of a record shall not only cite an exemption but must explain with specificity why the exemption applies to a withheld or redacted portion of the responsive record in order to comply with the Public Records Law and its Access Regulations. G. L. c. 66, § IO(a). Additionally, the Department has not met its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comrn'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § lO(a). I understand a member of the Public .Records Division staff contacted your office about this matter. Conclusion Given that the Department did not meet its burden to explain how an exemption applies

Jeanine Roth SPRI8/508 Page 4 April 30, 2018 to the records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Snell with responsive records, 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. The Department may file a request for reconsideration within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Emory Snell