Harold Oliver v. Massachusetts Parole Board (SPR 20190497)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 19, 2019 SPR19/0497 Stacy Book Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of Harold Oliver appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Oliver requested information related to a matter before the Board. 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, § IOA(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, § IO(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, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Appeal With respect to Mr. Oliver's request for "[a] copy of the Risk Assessment Tool ('LS/CMI') utilized by the Massachusetts Parole Board depicting my information," in his 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

Stacy Book SPR19/0497 Page 2 March 19, 2019 petition for appeal, Mr. Oliver indicates that he is "merely seeking information about [himself] used to arrive at the score on that instrument." In the Board's response dated January 30, 2019, it indicates that "the protocols used in conducting risk assessments" are exempt under Exemption (1) of the Public Records Law, "[t]he scoring sheets and questions from the LS/CMI [were] withheld because they are copyright protected and not meant for dissemination ... because it constitutes evaluative information and the Board has good cause to withhold it" citing to 120 C.M.R. 100 and 120 C.M.R. 303.22. The Board indicates the "LS/CMI was designed by Multi-Health Systems ... [and] [t]he redacted information is proprietary and protected as trade secret or confidential commercial information. Disclosure of which would undermine this confidential proprietary information" citing to Exemption (g) of the Public Records Law. The Board further states that "disclosure of the questions and answers would compromise the integrity of the risk and needs assessment system by providing individuals an unfair advantage in accessing assessment questions and answers prior to the administration of future evaluations" citing to Exemption (1) of the Public Records Law. The Board states that "the questions and answers are investigatory in nature and disclosure of this information would compromise the assessment process, and thus frustrate law enforcement efforts" citing to Exemption (f) of the Public Records Law. Exemption (j) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90.

Stacy Book SPR19/0497 Page 3 March 19, 2019 Exemption (f) is also intended to allow investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Bougas, 371 Mass. at 62. Consequently, there is no requirement that an investigative agency demonstrate prejudice to an ongoing investigation to withhold the identities of voluntary witnesses, informants or complainants. Reinstein, 378 Mass. at 290 n.18. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,438 (1983). The Supreme Judicial Court has held that "the inquiry as to what constitutes identifying information regarding an individual must be considered not only from the viewpoint of the public, but also from the vantage of those who are familiar with the individual and his career." Id. at 438. Exemption (g) Exemption (g) applies to: trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this sub-clause shall not apply to information submitted as required by law or as a condition ofreceiving a governmental contract or other benefit G. L. C. 4, § 7(26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six ( 6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information not provided by law, and (6) Information not submitted as a condition ofreceiving a governmental contract or benefit. Exemption (l) Exemption (1) permits the withholding of: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. C. 4, § 7(26)(1).

Stacy Book SPR19/0497 Page4 March 19, 2019 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, § IO(b)(iv)(emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Board's response did not contain the specificity required in a denial of access to public records. Instead, the Board's response merely cites Exemptions (f), (g), and (1) without sufficient explanation as to the exemptions' applicability to the requested records. The Board is not permitted to issue a blanket denial without providing further information with respect to the requested records. As a result, I find that the Board did not satisfy its burden in responding to this records request. The Board 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. Further it is unclear how the "scoring sheets and questions from the LS/CMI" are exempt from disclosure in their entirety. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). Conclusion Given that the Board has not met its burden to explain how an exemption applies to the requested records, the requested records may not be withheld. Accordingly, the Board is ordered to review the records, redact where necessary, and provide Mr. Oliver 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. The Board may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Harold Oliver