Kay Lazar v. Massachusetts State Police (SPR 20181380)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 28, 2019 SPRlS/1380 Daniel Brunelli, Esq. Staff Counsel Department of State Police 470 Worcester Road Framingham, MA 01702 Dear Attorney Brunelli: I have received the petition of Kay Lazar of the Boston Globe appealing the response of the Department of State Police (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Lazar requested all letters and emails the Department received from the Massachusetts Inspector General's Office (OIG). Previous appeal; reconsideration This request was the subject of a previous appeal and subsequent reconsideration. See SPR18/1380 Determinations of the Supervisor of Records (September 28, 2018 and November 9, 2018). In my November 9th determination, I found that the Department had not met its burden to withhold portions of the responsive records pursuant to Exemption (f) of the Public Records Law. Accordingly, I indicated that the Department may provide this office with an explanation of its position regarding the applicability of Exemption (f) to withhold responsive records from disclosure or in the alternative, provide records for in camera inspection. In camera inspection This office had a meeting with representatives from the Department and OIG on January 4, 2019, in order to discuss the responsive records, and I would like to thank them for their cooperation. In its previous response of September 13, 2018, the Department had claimed Exemption (a) to withhold responsive records from disclosure. G. L. c. 4, § 7(26)(a). Finding that the Department had not met its burden to withhold records under Exemption (a), the Department subsequently claimed Exemption (f) in its October 13th response. G. L. c. 4, § 7(26)(f). 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

Daniel Brunelli, Esq. SPR18/1380 Page 2 January 28, 2019 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. The Department cited G. L. c. 12A, § 13, as it operates through Exemption (a) of the Public Records Law to withhold responsive records. The statute provides in relevant part: All records of the office of inspector general shall be confidential unless, it is necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four. Violation of the provisions of section nine and section ten relative to the secrecy of proceedings by the inspector general or any member of the staff, or by any member of the inspector general council, shall be punished by imprisonment in a jail or house of correction for not more than six months or by a fine of not more than one thousand dollars. G. L. c. 12A, § 13. During the in camera discussion, the Department reiterated its assertion that the records are exempt from disclosure pursuant to Exemption (a). In an email correspondence dated January

Daniel Brunelli, Esq. SPR18/1380 Page 3 January 28, 2019 24, 2019, the Department further clarified that" ... the email responses from the [Department] to the OIG are now records of the OIG ... given that the e-mails contain information that is being provided to the OIG." In support of its position, the Department references 945 C.M.R. l.04(2)(b), a regulation of the OIG. This regulation states in pertinent part: Complaints, information or referrals received, including the identity of the complainant or informant or referral source, are records of the Office of the Inspector General. Such records are not public records within the meaning of M.G.L. c. 4, § 7 clause 26 and shall be kept confidential unless disclosure is deemed necessary in the performance of the duties of the Office. 945 C.M.R. l.04(2)(b). In light of the in camera discussion, as well as the Department's responses which cite to a statute that renders the records of the OIG confidential and a related Regulation that defines information received by the OIG as confidential, I find the Department has met its burden to withhold responsive records from disclosure under G. L. c. 12A, § 13, as it operates through Exemption (a) of the Public Records Law. Therefore, I decline to opine on the Department's Exemption (f) claim supporting non-disclosure of the requested records. Conclusion Accordingly, I will consider this administrative appeal closed. If Ms. Lazar 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, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Kay Lazar