Joel Lemos v. Department of Correction - Legal Division (SPR 20180509)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 1,2018 SPRlS/509 Patricia Snow Massachusetts Department of Correction P.O. Box 946 Norfolk, MA 02056 Dear Patricia Snow: I have received the petition of Joel Lemos appealing the response of the Massachusetts Department of Correction (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Lemos requested numerous records concerning the conduct of various MCI-Norfolk staff. Unsatisfied with the response of the Department, Mr. Lemos petitioned this Office and as a result, SPRl 8/509 was opened. Current Appeal In a letter dated April 12, 2018 Mr. Lemos petitioned this office claiming that "the number of employees fired for misconduct or disciplined would not violate potential CORI or the rational therefore." In a response letter dated March 21, 2018, the Department expressed to Mr. Lemos that it is withholding records pursuant to Exemption (a) and Exemption (c). A supplemental response was also sent to Mr. Lemos on April 20, 2018 in which the Department reiterated its use of exemptions. 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). 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

Patricia Snow SPR18/509 Page 2 May 1,2018 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. It should be noted that as part of the criminal justice reform bill recently signed by Governor Baker on April 13, 2018, there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 2018. Given that it was signed with an emergency preamble, this is the current definition of CORI: "Criminal offender record information", records 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 offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 is adjudicated as an adult, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 ( emphasis added). In its March 21st response, the Department asserts that "[t]he Statutory Exemption G. L. c. 4, §7 (26)(a) -'specifically or by necessary implication exempted from disclosure by statute' because documentation regarding criminal acts or criminal conduct constitutes criminal offender information (CORI) under G. L. c. 6 § 172." I find that the Department has not met its burden to demonstrate how the records concerning the conduct of Department employees are exempt under the CORI Act; specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before

Patricia Snow SPR18/509 Page 3 May 1, 2018 arraignment," as described above. In light this change to the definition of CORI, the Town may provide supplemental information addressing this issue. Exemption (c) Exemption ( c) permits the withholding of: 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 analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-33 (1983). The first clause creates a categorical exemption for personnel information that relates to an identifiable individual and is of a "personal nature." Id. at 434. The Supreme Judicial Court of Massachusetts found that a records custodian may withhold from disclosure as personnel information records containing information that is "useful in making employment decisions regarding an employee." Wakefield Teachers Ass'n v. School Comm., 431 Mass. 792, 798 (2000). The courts have discussed specific categories of records that may be redacted under the first clause. See Globe Newspaper Co v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 Publishing Co. v. Register of Probate for Norfolk County, 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). In the March 21st letter you state, "[r] ecords, if any, regarding employees 'who have been fired for misconduct', and 'findings of misconduct and or reprimands', are exempt from disclosure under G. L. c. 4, §7 (26) ... as the records are personal files, and, furthermore, the materials relate to specifically named individuals, the disclosure of which constitutes an unwarranted invasion of personal privacy." I find that the DOC has not met its burden to demonstrate how the records concerning the conduct of DOC employees are exempt under Exemption ( c) . It is unclear from the Department's response how these records "constitute personal files." The Department's response did not contain the specificity required in a denial of

Patricia Snow SPR18/509 Page 4 May 1, 2018 access to public records. Instead, the Department's response merely cites Exemption (a) and Exemption (c) without any further explanation as to the exemptions' 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. · 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, § lO(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 ..." ); Flatley, 419 Mass. at 511. Conclusion Accordingly, the Department is ordered to provide Mr. Lemos a response 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Joel Lemos