Joel Lemos v. Department of Correction - Legal Division (SPR 20181315)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords September 13, 2018 SPRlS/1315 Patricia Snow Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Snow: I have received the petition of Joel Lemos appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Lemos requested the following categories of records: 1. The number of MCI-Norfolk employees who have been fired for misconduct. This should include security staff to contract staff; 2. Any and all information in regard to [ an identified individual] findings of misconduct and/or reprimands for criminal acts; and 3. [An identified individual], misconduct or reprimands in regard to criminal conduct. Previous appeal This request was the subject of a previous appeal. See SPR18/509 Determination of the Supervisor of Records (May 1, 2018). I closed SPR18/509 by ordering the Department to provide Mr. Lemos a response in a manner consistent with the order, the Public Records Law and its Regulations within ten business days. The Department provided Mr. Lemos with a response on June 27, 2018. Unsatisfied with the Department's response, Mr. Lemos petitioned this office and this appeal, SPR18/1315, 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, § 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). 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 SPR18/1315 Page 2 September 13, 2018 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, § lO(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, § 1 O(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal 11 In its June 2i response, the Department provides Mr. Lemos with information responsive to the first category of his request and claims the records responsive to the second and third category of his request are exempt from disclosure pursuant to the Criminal Offender Record Act as it operates through Exemption (a) of the Public Records Law and Exemptions (b) and (c) of the Public Records Law. G. L. c. 6, § 172; G. L. c. 4, § 7(26)(a), (b), (c). Exemption (a) Exemption (a), known as the statutory exemption, permits the withholding ofrecords 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." 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.

Patricia Snow SPR18/1315 Page 3 September 13, 2018 It should be noted that as part of the criminal justice reform bill, there has been an update to the definition of CORI. Section 3 of Chapter 69 of the Acts of 2018. 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 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). With respect to the second and third categories of records in Mr. Lemos' request, in its June 2ih response the Department indicates that "[t]hese records are exempt because documentation regarding criminal acts or criminal conduct and any resulting disciplinary records citing such criminal acts or conduct constitute criminal offender records information (CORI) under G.L. c. 6 § 172. Specifically, if any such records exist regarding criminal conduct or acts concerning [ an identified individual] and [ an identified individual], they would be exempt as CORI because they contain 'information recorded in criminal proceedings that were not dismissed before arraignment.'" It is unclear how all of the withheld records fall under the CORI Act; specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. In addition, the Supreme Judicial Court has held "there is no violation of the CORI statute when the search specifications consist of information that would also be revealed on the court's records accessible to the public." Globe Newspaper Co. v. Dist. Attorney for the Middle Dist., 439 Mass. 374, 384 (2003). It is uncertain whether the Department possesses responsive records that are considered public in light of the new CORI definition and/or the Globe decision. See G. L. c. 66, § lO(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

Patricia Snow SPR18/1315 Page 4 September 13, 2018 withholding, including the specific exemption or exemptions upon which the withholding is based ....) ; Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). The Department must clarify this matter and produce any such records. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10( a). Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, Provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. C. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). With respect to the second and third categories ofrecords in Mr. Lemos' request, in its June 2i11 response the Department indicates that "[t]he Commissioner of the Department of Correction has determined that the requested records, if any, are internal documents, and their disclosure to a state prisoner would risk harm to personal safety and institutional security. Respectfully, the Supervisor of Records must give deference to correction professionals on matters involving safety and security. The records requested, if any, are not allowed in an inmate's living quarters; and therefore, if any such documents exist, the Department cannot provide them to [Mr. Lemos]."

Patricia Snow SPR18/1315 Page 5 September 13, 2018 In Massachusetts, the records access officer or custodian normally must demonstrate that the information is not only related solely to internal rules or practices, but also that the proper performance of necessary government functions will be inhibited by disclosure. Despite the Department's response, it remains unclear how the records relate solely to internal practice and policy and how disclosure would inhibit the Department's necessary functions. Accordingly, I find that the Department has not met its burden of demonstrating how the records are exempt from disclosure, in their entirety, under Exemption (b) and the records may not be withheld. 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). The Department provides no further information in support of its Exemption ( c) claim in its June 2ih response. As such, I will reiterate my May 1st finding that the Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department merely cites Exemption (c) without any further explanation as to the exemption's

Patricia Snow SPR18/1315 Page 6 September 13, 2018 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. See SPRl 8/509 Determination of the Supervisor of Records (May 1, 2018). Identifying categories ofr ecords Further, despite the Department's response, it remains unclear what records the Department possesses. The Department must provide a response to Mr. Lemos that provides additional information regarding whether the Department possesses responsive records. See G. L. c. 66, § IO(b)(iv) (a written response shall "identify any records, categories ofrecords 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 ( custodian has the burden of establishing the applicability of an exemption). Order Accordingly, the Department is ordered to provide Mr. Lemos 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: Joel Lemos Carol Colby