William Nadworny v. Massachusetts Parole Board (SPR 20191794)

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

Rebecca S, Murray Supervisor of Records

September 17, 2019 SPR19/1794

Stacy Book

Records Access Officer

Massachusetts Parole Board

12 Mercer Road

Natick, MA 01760

Dear Ms. Book:

[ have received the petition of William Nadworny appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G, L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Nadworny requested “any and all letter(s) of opposition from citizens and or the deceased’s family from 1999 to present...the files of William Nadworny, the Victims Unit, and/or files of the Parole Board Members.” The Board responded on June 6, 2019, denying access to responsive records. Unsatisfied with the Board’s response, Mr, Nadworny petitioned this office and SPR19/1768 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, § 10A(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); 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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

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 . SPR19/1794 Page 2 September 17, 2019

Burden of specificity in responding and claiming exemptions

Under the Public Records Law, the burden is on the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(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. Although the Board indicates that “letters received by the Parole Boardin opposition to parole victims, or individuals, who do not hold public office, are withheld from disclosure pursuant to 120 CMR 400.01(2) and 120 CMR 500.06” it is unclear which exemptions under the Public Records Law the Board is claiming to withhold such record or how the exemptions apply to withhold the requested record. If the Board is withholding records, the Public Record Law requires it to provide a detailed response to specifically explain how the claimed exemptions apply to withhold the requested record in compliance with the Public Records Law. See G. L. c. 66, § 10(b)(iv).

Order

Accordingly, the Board is ordered to provide Mr. Nadworny 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,

Qhcca

Rebecca S, Murray Supervisor of Records

ce: William Nadworny