Jose L. Negron v. Department of Correction - Legal Division (SPR 20180655)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 22, 2018 SPR18/655 Joan T. Kennedy, Esq. Legal Counsel III Department of Correction - Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Attorney Kennedy: I have received the petition of Jose Negron appealing the response of the 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, on November 29, 2017, Mr. Negron requested records and investigative reports regarding the security threat group management. Mr. Negron noted that this request includes, but is not limited to, "(1) Policy Regulation 103 DOC 514.00 ('STG'), (2) Policy Regulation 103 DOC 527. 00 ('SRI'), ~3) Investigative reports or Investigation specifically from December of 2010 through January 24t1 2017 by the I.P.S., ( 4) Reports of closing investigation, (5) Any and all information, data, pictures; not otherwise exempted by statute, (6) Periodic Review reports ('STG') validation, (7) STG Hearing Forms signed/dated, (8) Conflicts Submitted Forms, [and] Interview Reports on ('STG') conflicts submitted by the ('IPS') Department." Previous appeal; in camera review This request was the subject of a previous appeal and subsequent reconsideration. See SPR18/026 Determinations of the Supervisor of Records (January 16, 2018 and February 21, 2018). After the reconsideration, I ordered the Department to provide an unredacted copy of a representative sample of the responsive records for in camera inspection. After the in camera review, I issued a determination on April 10, 2018. In my April 10th determination, I found that to the extent that portions of the responsive records may fall within Exemptions (b) and (f) of the Public Records Law, those portions may properly be withheld from disclosure. However, I indicated that it was unclear whether the records must be withheld in their entirety. As a result, I ordered the Department to provide Mr. Negron with a response to the request, provided in a manner consistent the order, the Public Records Law, and its Regulations within ten business days. 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

Joan T. Kennedy, Esq. SPR18/655 Page 2 May 22, 2018 Following my April 10th determination, the Department provided a response dated April 25, 2018, which included responsive records in redacted form. Unsatisfied with the Department's response, Mr. Negron petitioned this office and this appeal, SPR18/655, 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, § IOA(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, § IO(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, § IO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's April 25th response In its April 25, 2018 response, the Department indicated that the responsive records provided were redacted in accordance with the Supervisor's April 10th order. Based on the in camera review of responsive records, coupled with the Department's provision of responsive records in redacted form, I find the Department has acted properly in redacting the records pursuant to Exemptions (b) and (f) of the Public Records Law. See SPRI 8/026 Determination of the Supervisor of Records (April 10, 2018). Conclusion Accordingly, whereas I find that the Department may permissibly withhold the redacted portions of the responsive records pursuant to Exemptions (b) and (f) of the Public Records Law, I decline to conduct a second in camera review of the responsive records. This administrative appeal is now closed. If Mr. Negron is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1 O(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Joan T. Kennedy, Esq. SPR18/655 Page 3 May 22, 2018 Sincerely, ~ a y ~ Supervisor of Records cc: Jose Negron