Justice Ainooson v. Department of Correction - Division of Human Resources (SPR 20191816)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth · Public Records Division Rebecca S. Murray Supervisor o.f Records September 20, 2019 SPR19/1816 Denise Santos Division of Human Resources Department of Correction 1 Industries Drive P. 0. Box 946 Norfolk, MA 02056 · Dear Ms. Santos: I have received the petition of Justice Ainooson appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 29, 2019, Mr. Ainooson requested "a copy of the statistics below (I am not requesting personal information): · 1. Any and all material, documents, reports, information, start sheets, memos, reprimands, logs, journals for: a) The number of all correctional officers, staff, volunteers, contract workers, medical staff, administrative members (but not limited to) that were caught, reprimanded and/or discovered introducing contraband into all Department of Corrections facilities/institutions (such as MCI-Concord, MCI Norfolk, MCI Shirley etc.) for each year, from the year 2000 to the present; b) The number of all inmates who were caught, reprimanded and/or discovered introducing contraband through visits, for each year, from 2000 to the present." Previous Appeal This request was the subject of previous appeals. See SPR18/1669 Determination of the Supervisor of Records (November 26, 2018) and SPR19/1158 Detennination of the Supervisor of Records (June 24, 2019). In my June 24th determination, I directed the Department to confirm whether it possesses responsive records and provide such response in compliance with the Public Records Law and its Regulations. Following the June 24th determination, the Department provided further information on July 15, 2019. In the Department's response, it denied access to responsive records pursuant to Exemptions (a) and (c) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c). Unsatisfied with the Department's response, Mr. Ainooson petitioned this office and this appeal, SPR19/l 158, was opened as a result. 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

Denise Santos SPR19/1816 Page 2 September 20, 2019 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 fonn 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. The Department's July 151 response " In its July 15, 2019 response, the Department indicates that it" ... does not keep records specifically concerning visitors and volunteer staff caught with contraband." The Department claims the following exemptions to withhold responsive records from disclosure. Exemption (a) Exemption (a), known as the statutory exemption, pennits 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."

Denise Santos SPR19/1816 Page 3 September 20, 2019 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. Under Exemption (a), the Department asserts that" ... any data relating to the introduction of contraband by specific inmates is exempt from disclosure by statute. Pursuant to G.L. c. 6, §§ 167-178(b), the CORI statute, and 103 Code ofMassachusetts Regulations (CMR) 153, CORI Regulations, data about living present or f01mer inmates are not public record. Protected CORI information includes names, criminal and prison records, and other identifying information about an inmate." Further, citing the language of G. L. c. 66A, the Fair Information Practices Act (FIP A) statute, the Department contends that it" ... may 'not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought.' G.L. c. 66A, § 2." Exemption (c) Exemption (c) permits the withholding of: 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). First clause ofE xemption (c) - personnel 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. v. 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).

Denise Santos SPR19/1816 Page4 September 20, 2019 Under the first clause of Exemption (c), the Department asserts that "[a]s to employees, even if [it] had some way to compile this data, information regarding employee disciplinary matters is not considered public record." Citing Wakefield, Worcester, and other decisions, the Department states that " ... Courts have rnled that certain personnel data, particularly that dealing with disciplinary matters, is exempt from disclosure ...." Consequently, the Department contends that "[a]ny records concerning specific actions taken against employees are protected from disclosure." 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 efficient manner. Id. at 292. Under the second clause of Exemption ( c ), the Department contends that "[ d]isclosure of [personal data] would violate G.L. c. 4, § 7 (26)(c), which precludes dissemination of any such documents, as they would contain 'data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy."' Fair Information Practices Act (FIPA) FIP A, which imposes restrictions on the dissemination of "personal data," reads in pertinent part that the holder maintaining personal data shall:

Denise Santos SPR19/1816 Page 5 September 20, 2019 not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought if the data subject is entitled to access under clause (i). G. L. c. 66A, § 2(c). The Department is reminded that FIP A and the Public Records Law are to be construed to work together consistent with the legislative.purpose. 32 Op. Atty Gen. Mass. 157, 160 (May 18, 1977). FIP A cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that "detem1ining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A"). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIP A may also operate to restrict disclosure. In his appeal petition, Mr. Ainooson states "I requested the 'statistics,' as I clearly began my request stating: 'would you kindly please forward to me a copy of the statistics below (I am not requesting personal information)."' Mr. Ainooson further indicates that "I further reiterated this within my requests by clearly stating 'a) the number of all conectional officers, ... that were caught, reprimanded and/or discovered introducing contraband into ... ' and 'b) the number of all inmates ... ' It was made clear that I am requesting statistics, not private/personal information ...." In light of Mr. Ainooson's statements, where he claims he is only seeking statistical information and not personal/private information, it is unclear whether the Department possesses responsive records. In accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5)(b). Conclusion Accordingly, the Department is ordered to provide Mr. Ainooson 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.

Denise Santos SPR19/1816 Page 6 September 20, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Justice Ainooson