Deborah Becker v. Massachusetts Parole Board (SPR 20191643)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 26, 2019 SPR19/1643 Courtney E. Doherty, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Dohe1iy: I have received the petition of Deborah Becker of WBUR appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on July 24, 2019, Ms. Becker requested the following records: "[1]. Information regarding the 7/23/19 parole hearing for Gregory Diatchenko. [2.] Reasons for the parole revocation of Gregory Diatchenko. [3.] Information regarding the arrest of Gregory Diatchenko in May of 2018. [4 .] Parole revocation information from parole board decision on July 31, 2018 regarding Gregory Diatchenko. [5 .] Transcripts/recordings of the hearings." The Board responded on August 5, 2019, providing access to certain records responsive to request 1 and denying access to other records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Board's response, Ms. Becker petitioned this office and this appeal, SPRl 9/1643, 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 Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec. state .ma. us/pre • pre@sec.state.ma. us

Courtney E. Doherty, Esq. SPR19/1643 Page 2 August 26, 2019 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 pmiion 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. Tlte Board's Augusts'" response In its August 5, 2019 response, the Board indicates that it is providing" ... the DVD of Mr. Diatchenko's July 23, 2019 Review Hearing." The Board asserts that "[a]ll other materials in Mr. Diatchenko's parole file are exempt from public disclosure under M.G.L. c. 4, § 7(26)(a) (the statutory exemption) and M.G.L. c. 4, § 7(26)(c) (the privacy exmeption). The applicable statute exempting these records from public disclosure under [Exemption (a)] is the Criminal Offender Record Information Statute, at M.G.L. c. 6, § 172." 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 Comi, 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 paiiicular 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.

Courtney E. Doherty, Esq. SPR19/1643 Page 3 August 26, 2019 Second clause ofE xemption (c) - privacy 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, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and t?fficient manner. Id. at 292. Burden of specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "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 withholding, including the specific exemption or exemptions upon which the withholding is based ... "); 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 merely cites G. L. c. 6, § 172, as it operates through Exemption (a), as well as Exemption (c) without any further explanation as to the exemptions' applicability to the responsive records .. 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. G. L. c. 66, § lO(b)(iv).

Courtney E. Doherty, Esq. SPR19/1643 Page 4 August 26, 2019 With respect to Exemption (a), please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Consequently, although the Board cites G. L. c. 6, § 172, it remains unclear how the statute specifically or by necessary implication permits it to withhold the requested records from disclosure. In her petition for appeal, Ms. Becker references subsection 4 of G. L. c. 6, § 172, which states in relevant part: Any member of the general public may upon written request to the depaiiment and in accordance with regulations established by the department obtain the following criminal offender record information on a subject: (i) convictions or findings of not guilty by reason of insanity for any felony punishable by a term of imprisonment of 5 years or more, for 10 years following the disposition thereof, including termination of any period of incarceration or custody; (ii) information indicating custody status and placement within the correction system for an individual who has been convicted of any offense and sentenced to any term of imprisonment, and at the time of the request: is serving a sentence of probation or incarceration, or is under the custody of the parole board; (iii) felony convictions or findings of not guilty by reason of insanity for 2 years following the disposition thereof, including any period of incarceration or custody; and (iv) misdemeanor convictions for 1 year following the disposition thereof, including any period of incarceration or custody. G. L. c. 6, § 172(4). In light of the above, it is unclear how G. L. c. 6, § 172, as it operates through Exemption (a), applies to allow the Board to withhold the rest of the records from disclosure. With respect to Exemption (c), based on the Board;s response, I find the Board has neither demonstrated that the records contain intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether this information is available from other sources. PETA, 477 Mass. at 292. Further, the Board did not provide information with respect to the balancing test · set out in the second clause of Exemption ( c ), which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Board must clarify these issues. As a result, the Board did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure. 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, § lO(a).

Courtney E. Doherty, Esq. SPR19/1643 Page 5 August 26, 2019 Conclusion Accordingly, the Board is ordered to provide Ms. Becker 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: Deborah Becker