Michael Dreslinski v. Department of Correction - Legal Division (SPR 20181050)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords August 1, 2018 SPRlS/1050 Kate M. Silvia Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Michael Dreslinski 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 April 10, 2018, Mr. Dreslinski requested "[r]ecordings of all inmate telephone communications made by Mr. Michael P. Dreslinski ... 12- 01-2017 through 01-15-2018." On May 8, 2018, the Department denied his request claiming the responsive records are exempt from disclosure pursuant to Exemption ( c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § 1O (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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Kate M. Silvia SPR18/1050 Page 2 August 1, 2018 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, 432-34 (1983). Only the second clause of Exemption ( c) is applicable to this determination. Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623,625 (1980). Therefore, determinations must be made on a case by case basis. · This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 4 77 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. The Department's response; Mr. Dreslinski 's petition for appeal In its May 3th response, the Department indicates that "[t]hese documents are not public records, as they contain information and data relating to specifically named individuals, the disclosure of which may constitute an unwarranted invasion of personal privacy." The Department explains that "[i]n this case of telephone records or recordings, these are not public

Kate M. Silvia SPR18/1050 Page 3 August 1,2018 records because of the significant abridgement of privacy rights involved in their release. The privacy rights of someone who converses with a prison inmate certainly outweigh the public's right to view telephone call logs or to listen to these personal conversations." In his petition for appeal, Mr. Dreslinski indicates that "the issue of privacy has been waived by the person who conversated [sic] with the petitioner during their phone conversations, as evidenced by the attached privact [sic] waiver letter. These recordings serve the public interest by exposing the DOC's inmate rehabilitation and community reintegration practices to the light of public scrutiny, which is especially important during the current gubernatorial election season. The RAO has not established a privacy interest that substantially outweighs the public's right to know, whereby requiring the immediate release of the requested recordings." The letter referenced by Mr. Dreslinski in his petition for appeal from an identified individual, indicates the following: "Please be advised that because [Mr. Dreslinski] himself is requesting the information, I do not consider our conversations to be private or personal in nature. I unconditionally endorse and support the full release of all requested telephone calls and recorded conversations to [Mr. Dreslinski] or myself only, as I am his authorized power of attorney." Compliance with the requirements ofp roviding a response; specificity In response to a request for records, an RAO must provide a written response identifying any records, categories of records or portions of records that the agency intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based. See G. L. c. 66, § 1O (b )(iv). 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, § lO(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's response did not contain the specificity required in a denial of access to public records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. Specifically, based on the Department's response it is unclear what records the Department possesses that are responsive to Mr. Dreslinski's request. Further, in light of Mr. Dreslinski's petition for appeal, it is unclear whether the Department possesses communications between Mr. Dreslinski and the identified individual or between Mr. Dreslinski and any other individuals. The Department is advised that with respect to Exemption ( c ), it unclear how all of the records fall within the exemption in their entirety. Specifically, it is unclear whose privacy interests are at stake, how release of records would constitute an unwarranted invasion of personal privacy under the PETA analysis and whether the invasion of personal privacy is outweighed by any public interest in obtaining this information. Based on the Department's response coupled with Mr. Dreslinski's petition for appeal, I

Kate M. Silvia SPR18/1050 Page 4 August 1, 2018 find the Department did not meet its burden in responding to this request. The Department must provide a response to Mr. Dreslinski that provides additional information regarding whether the Department possesses responsive records. Specifically, the Department must identify the records or categories of records it has in its possession providing clarification on whose privacy interests are at stake prior to a determination of Exemption (c)'s applicability to any responsive records. Order Accordingly, the Department is ordered to provide Mr. Dreslinski with a response to the request, 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: Michael Dreslinski