Pam Czerepak v. Executive Office of Public Safety and Security - Department of Correction (SPR 20181123)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 3,201 8 SPR1811123 Jeanine Roth Records Manager Department of Correction - MCI Concord 965 Elm Street, P.O. Box 9106 Concord, MA 0 1742-91 06 Dear Ms. Roth: I have received the petition of Pam Czerepak appealing the response of Department of Correction - MCI Concord (Department) to a request for public records. G. L. c. 66, 5 1O A; see 950 C.M.R. 32.08(1). Specifically, on May 1, 201 8, 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, 7 Incident Reports, or All Other Information Attributable to 1, Where DOC Agents, Employees, rivate Contracted Telephone Vendors Intercepted or in Anyway Electronic or Otherwise Monitored such Telephone Calls during the Time Period 7 1. " I understand that Ms. Czerepak is appealing on behalf of Dennis Desgroseilliers. Previous appeal This request was the subject of a previous apIP eal. SPR181759 Determination of the Supervisor of Records (June 8,2018). In my June 8t determination I ordered the Department to review the records, redact where necessary, and provide Mr. Desgroseilliers with responsive records, provided in a manner consistent with the order, the Public Records Law, and its Regulations. The Department responded on June 20,201 8 by citing the Criminal Offender Record (CORI) Act and also noting "there are no such records." G. L. c. 6, 5 167; G. L. c. 4, 5 7(26)(a). Ms. Czerepak appealed and SPR18/1123 was opened as a result. Current appeal In its June 2othr esponse the Department asserts the requested records fall under the CON Act, but also indicates "[ilt should be further noted that I have researched the specifically requested items, in an attempt to identify the existence of such records, and I have been advised that there are no such records." In an email dated August 2,201 8, Ms. Czerepalc indicates "[wle One Ashburton Place, Room 1719 , Boston, Massachusetts 0210 8 (6 17) 727-2832. Fax: (6 17) 727-59 14 sec.state.ma.us/pre pre@sec.state.ma.us

Jeanine Roth Page 2 August 3,20 18 need a copy of all the recordings between Dennis and Peter Daigle or a transcript of those recordings." Ms. Czerepak included a document that appears to demonstrate that at least one call at issue was recorded. 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 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 (19 79); 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. 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 201 8. The current definition of CORI is as follows: "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

Jeanine Roth Page 3 August 3,20 18 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, tj 167 (emphasis added). Despite the Department's response, it is unclear how all of the withheld records fall under the CORI Act; specifically, it is unclear how these recordings or transcripts of the requested calls are "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. Existence of responsive records In an August 2nde mail the Department asserts "the requested items do not indicate that he is requesting a recording of actual calls, he is requesting records pertaining to such calls." You indicate "I was advised that there are no other documents in regards to his request, such as transcripts, materials related to the calls indicted, logs or incident reports as he requested in his original letter. This is why my response to SPR1817.59 that no documents exist." With respect to the existence of responsive records, I find that Mr. Desgroseilliers' original request, which seeks "Every and All Records. Transcripts, Information, Materials Directly Related to Telephone Calls," encompasses recordings or transcripts of such calls. Therefore, the Department must confirm whether it possesses the record described in Mr. Desgroseilliers' request and Ms. Czerepak's August 2nde mail, namely "a copy of all the recordings between Dennis and Peter Daigle or a transcript of those recordings." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, tj 1O (a)(ii); see also Massachusetts Statewide Records Retention Schedule (20 17 Edition). Conclusion The Department has not met its burden to explain how an exemption applies to the requested records. To the extent that responsive records exist, the Department is ordered to review the records, redact where necessary, and provide Ms. Czerepak 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.

Jeanine Roth Page 4 August 3,201 8 Sincerely, Rebecca S. Murray Supervisor of Records cc: Pam Czerepak