Dennis Desgroseilliers v. Executive Office of Public Safety and Security - Department of Correction (SPR 20180759)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S. Murray Supervisor of Records

June 8, 2018 SPR18/759

Jeanine Roth

Records Manager

Department of Correction — MCI Concord 965 Elm Street, P.O. Box 9106

Concord, MA 01742-9106

Dear Ms. Roth:

I have received the petition of Dennis Desgroseilliers appealing the response of Department of Correction — MCI Concord (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on May 1, 2018, Mr. Desgrosielliers requested “Every and All Records. Transcripts, Information, Materials Directly Related to Telephone Calls placed by Me to Attorney...from May 8, 2017, through October 30, 2017,” and “Every and Any Logs, Incident Reports, or All Other Information Attributable to § 1, Where DOC Agents, Employees, Servants, or Private Contracted Telephone Vendors Intercepted or in Anyway Electronic or Otherwise Monitored such Telephone Calls during the Time Period § 1.” On May 10, 2018, the Department denied his request, claiming that the responsive record is exempt from disclosure pursuant to the Criminal Offender Record (CORI) Act 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, § 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, § 10(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 SPR18/759 Page 2 June 8, 2018

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. .

Purpose of request; identity of requester

Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any. greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requester. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Desgroseilliers’s purpose in making the request has no bearing on the public status of any existing responsive records.

It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Mr. Desgroseilliers may wish to consider another means of seeking to obtain any existing responsive records.

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 of the Public Records Law.”

Jeanine Roth SPR18/759 Page 3 June 8, 2018

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 has cited 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 concer 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 not include information concerning any offenses which are not punishable by incarceration

G. L.c. 6, § 167.

In its response, the Department indicates it has withheld the requested records pursuant to the CORI Act because “ [t]he items requested are in regards to records that are specific to an incarcerated individual and created during the incarceration of said individual therefore these records shall not be subject to the disclosure provision of the Public Records Law.”

Specificity

The Public Records Law states that “the burden shall be upon the custodian to prove with specificity the exemption which applies.” G. L. c. 66, § 10(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations (Regulations).

The Department’s response did not contain the specificity required in a denial of access to public records. Instead, the Department’s response merely cites Exemption (a) and the CORI Act without any further explanation as to the exemption’s applicability to the requested records; in particular, it is unclear how the responsive records constitute CORI under the new definition

Jeanine Roth SPR18/759 Page 4 June 8, 2018

described above. Therefore, I find the Department has not met its burden to withhold responsive records under the CORI Act.

Further, I find the Department must provide a response to Mr. Desgroseilliers that provides additional information regarding whether the Department possesses responsive records. See G. L. c. 66, § 10(b)(iv) (a written response shall “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... .” ).

Conclusion

Given that the Department has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Department is ordered to review the records, redact where necessary, and provide Mr. Desgroseilliers 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.

Sincerely, Rebecca S. Murray

Supervisor of Records

cc: Dennis Desgroseilliers