John D. Rousseau v. Department of Correction - MCI Norfolk (SPR 20191790)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

September 16, 2019 SPR19/1790

Steven Silva Superintendent Department of Correction MCI-Norfolk

2 Clark Street, P.O. Box 43 Norfolk, MA 02056

Dear Superintendent Silva:

I have received the petition of John Rousseau appealing the response of the Department of Correction — MCI Norfolk (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Rousseau requested: “Any and all incident reports that relate to [an identified employee] for any incident that involves him leaving an unattended firearm 1 ina bathroom at MCI Cedar Junction.”

In an August 14, 2019 response, the Department states, “[w]hile neither confirming nor denying the existence of such records. G. L. c. 4, 7 (26) (a) exempts from disclosure material ‘specifically or by necessary implication exempted from disclosure by statute.’ Information of this nature is regarded as employee personnel matters and therefore is not considered public information.”

As a result of the Department’s denial of his request, Mr, Rousseau petitioned the Supervisor of Records (Supervisor), and this appeal was opened.

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).

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, § 10(b)(iv) (written response must “identify

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

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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...”); 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),

The Department’s August 14, 2019 response

The Department’s August 14" response indicates that it is denying the request under Exemption (a) of the Public Records, without citing the state or federal law that operates through - Exemption (a) to withhold any responsive records. In addition, the Department’s response

asserts, “[i]nformation of this nature is regarded as employee personnel matter and therefore is not considered public information.” .

It is unclear from the Department’s response whether it is claiming a specific statute that operates through Exemption (a), or whether the Department is withholding the responsive record(s) under the first clause of Exemption (c) of the Public Records Law as personnel information that is exempt.

Exemption (a)

Exemption (a), known as the statutory exemption, permits thé withholding of records 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.

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I find the Department did not meet its burden in withholding the records responsive to Mr. Rousseau’s request under Exemption (a) by not specifically claiming a Massachusetts General Law that operates through Exemption (a) to withhold the records or portions of the records responsive to Mr. Rousseau’s request,

Exemption (c) - personnel Exemption (c) applies to:

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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp.

vy. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to the first clause of Exemption (c). Wakefield Teachers Ass’n v. School Comm., 431 Mass. 792, 798 (2000). The courts have also 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 Publ’g Co. v. Register of Probate for Norfolk Cnty., 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’s August 14" response asserts that the records regard personnel matters, therefore, are not considered public information. I find that the Department did not meet its burden of specificity in claiming that the records are personnel information that is exempt under the first clause of Exemption (c). The Department must provide Mr, Rousseau with a response to

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' the request that specifically claims that Exemption (c) applies to withhold the record(s) or portions of the record(s) under the Public Records Law.

Burden of specificity; duty to segregate

The Department denied Mr. Rousseau’s request without properly claiming an exemption in the Public Records Law that would support the withholding of the responsive records, Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive 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), The Department must produce any non-exempt, segregable portions of the public records. G. L, c. 66, § 10(a).

The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure under the exemptions in the Public Records Law. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G, L. c. 66, § 10(b)(iv); 950 CMR 32,06(3)(c)(4). Here, the Department withheld responsive records without identifying the records or categories of records it is withholding. Therefore, the Department must identify how many and what type of record(s) it has in its possession that the Department withheld.

Conclusion

Accordingly, the Department is ordered to provide Mr. Rousseau with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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 Kobecca. Muna,

Supervisor of Records

cc: John Rousseau