Deborah Becker v. Massachusetts Parole Board (SPR 20191948)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords October 8, 2019 SPR19/1948 Courtney E. Doherty, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Doherty: 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. Previous appeal · The requested records were the subject of a previous appeal. See SPRl 9/1643 Determination of the Supervisor of Public Records (August 26, 2019). In my August 261 h determination, I found that the Board had not met its burden to withhold responsive records . under Exemptions (a) and (c) of the Public Records Law. Accordingly, I ordered the Board to - provide Ms. Becker with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the August 261 h determination, the Board responded on September 10, 2019, providing additional information regarding its exemption claims. Unsatisfied with the Board's response, Ms. Becker petitioned this office and this appeal, SPR19/1948, was opened as a result. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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

Courtney E. Doherty, Esq. SPR19/1948 Page 2 October 8, 2019 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 matedals 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 burderi 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 Board's September JOth response· In its September 10, 2019 response, the Board indicates that it provided a DVD containing the recording of a review hearing. You note that this DVD is responsive to items 1 and 5 of the request. The Board also asserts that it possesses records responsive to items 2, 3, and 4 of Ms. Becker's request. Requests 2 and 4 · With respect to the above referenced requests, the Board indicates that it possesses "the Record of Decision produced on July 31, 2018 from the Office of Vote pertaining to Mr. Diachenko's Final Revocation." The Board withheld this record under G. L. c. 127, § 130, 120 C.M.R. 301.06(6), G. L. c. 6, § 167, G. L. c. 6, § 172, and 120 C.M.R. 500.06(2)(c). Exemption (a) Exemption ( a), known as the statutory exemption, permits the 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).

Courtney E. Doherty, Esq. SPR19/1948 Page 3 October 8, 2019 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. The statutes and regulations state in relevant parts: Granting of parole permits; record of decision; jurisdiction of parole board over parolee ... . . . The record of the board's decision shall contain a summary statement of the case indicating the reasons for the decision, including written certification that each board member voting on the issue of granting a parole permit has reviewed the entire criminal record of the applicant, as well as the number of members voting in favor of granting a parole permit and the number of members voting against granting a parole permit. Said record ofd ecision shall become a public record and shall be· available to the public except for such portion thereofw hich contains information .upon which said decision was made which said information the board determines is actually necessary to keep confidential to protect the security ofa criminal or civil investigation, to protect anyone from physical harm or to protect the source ofa ny information; provided, however, that it was obtained under a promise ofc onfidentiality. All such confidential information shall be segregated from the record of decision and shall not be available to the public. Said confidential information may remain secret only as long as publication may defeat the lawful purposes of this section for confidentiality hereunder, but no longer. ... ·· G. L. c. 127, § 130 (emphasis added). The updated definition of Criminal Offender Record Information (CORI) states in relevant part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the · nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing,

Courtney E. Doherty, Esq. . SPR19/1948 Page 4 October 8, 2019 incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offenderrecord information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information ... Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration G. L. c. 6;§ 167 (emphasis added). Procedure at Initial Parole Release Hearing and Review Hearings for Inmates Serving Life Sentences The full Parole Board shall vote on the final decision regarding parole release at a regularly scheduled executive session following the public hearing. Any decision shall be by majority ofthefull Board. The Parole Board shall notify the inmate of its decision in writing and the reasons therefor. The decision of the Parole Board members is a public record, as provided by M. G. L. c. 127, § 130. 120 C.M.R. 301.06(6). Dissemination of Evaluative Information to the Offender (1) Upon written request by the offender or his or her representative, with verified written authority, the Parole Board shall disseminate evaluative information generated by it unless disclosure of such information falls under one of the exemptions listed in 120 CMR 500.06(2). · (2) The following evaluative information shall not be disseminated pursuant to M.G.L. c. 127, § 130, c. 4, § 7(26), and c. 66A: (a) information which would pose a direct and articulable threat to the safety of an individual; (b) information which would pose a direct and articulable threat to the security of a correctional facility; (c) information deemed confidential by the Parole Board; (d) documents or working papers of the deliberative process of the hearing .w panel. 120 C.M.R. 500.06(2)(c) (emphasis added). The Board asserts that "[t]he decision of the Board at an initial or review hearing is a public record where the Board's decision regarding Final Revocation is not. M.G.L. c. 127, § 130; 120 CMR 301.06(6)." You further indicate that the record" ... contains CORI-protected evaluative information detailing Mr. Diatchenko's rehabilitative progress, parole violations, and the 'findings and orders' of the Board supporting the decision to revoke parole. M.G.L. c. 6 §

Courtney E. Doherty, Esq. SPR19/1948 Page 5 October 8, 2019 167. Therefore, the Board submits this document is exempt from public disclosure under M.G.L. C: 4, § 7(26)(a) (the statutory exemption) and the applicable statute is the Criminal Offender Record Information Statute, at M.G.L. c. 6 § 172. Also, the Board has deemed this document confidential pursuant to 120 CMR 500.06 (2)(c)." The provisions of 120 C.M.R. 500.06(2)(c) are contained within the section of the regulations titled "Dissemination of Evaluative Information to the Offender." Whereas the request at issue in this appeal is not from the Offender, I find it is unclear how 120 C.M.R. 500.06(2)(c) applies to allow the Board to withhold the Record of Decision at issue. With respect to the applicability of G. L. c. 127, § 130 and 120 CMR 301.06(6), the relevant provision states "[s]aid record of decision shall become a public record and shall be available to the public except for such portion thereof which contains information upon which said decision was made which said information the board determines is actually necessary to keep confidential to protect the security of a criminal or civil investigation, to protect anyone from physical harm or to protect the source of any information; provided, however, that it was obtained under a promise of confidentiality." Based on the Board's response, I find it has not established whether the Board determined that the record is "actually necessary to keep confidential to protect the security of a criminal or civil investigation, to protect anyone from physical harm or to protect the source of any information." Therefore, it is unclear how G. L. c. 127, § 130 and 120 C.M.R. 301.06(6) apply to allow the Board to withhold the Record of Decision at issue in its entirety. Any non exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § IO(a). With respect to its claim that the Record of Decision may be withheld as CORI, based on the Board's response, I find it is unclear how the Record of Decision is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. The Board must address this issue. Request 3 With respect to request 3, the Board indicates that it possesses "[1] Violation Report dated May 30, 2018 and [2] Preliminary Hearing Summary dated June 14, 2018." The Board claims these records are exempt pursuant to Exemption (a), and cites the (CORI Act, G. L. c. 6, § 172, as well as Exemption (c). Ms. Becker contends that the records can be disclosed under G. L. C. 6, § 172(4). G. L. c. 6, § 172(4 ) states that "[a]ny member of the general public may upon written request to the department and in accordance with regulations established by the department obtain the following criminal offender record information on a subject . .. " ( emphasis added). The Board contends that" ... this subsection clearly intends for public disclosure of CORI information concerning offenses for which an individual has already been convicted." The Board

Courtney E. Doherty, Esq. SPR19/1948 Page 6 October 8, 2019 explains that "Mr. Diachenko's only conviction arises out of a first degree murder he committed in 1981. The [responsive records] contain CORI information for conduct and offenses (separate and distinct from the murder) that have not resulted in criminal convictions, despite their being the basis of parole violations." As a result, the Board claims that the Violation Report and the Preliminary Hearing Summary are exempt. In order to determine whether G. L. c. 6, § 172(4) applies, I find it is first necessary to determine whether the Board has met its burden to show how the responsive records constitute CORI. In light of the Board's response, I find it is unclear how the requested records, particularly the Violation Report and Preliminary Hearing Summary, constitute CORI in their entirety. G. L. c. 66, § lO(a). Specifically, it is unclear how they are "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. The Board must address this issue. 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) medical The first clause creates a categorical exemption for personnel and medical information that relates to an identifiable individual and is of a "personal nature." Id. at 434. Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. at 432-34. There is a strong pl)blic policy in Massachusetts that favors confidentiality as to medical data about a person's body. Globe Newspaper Co. v. Chief Med. Examiner, 404 Mass. 132, 135 (1987). 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.

Courtney E. Doherty, Esq. SPR19/1948 Page 7 October 8, 2019 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. The Board asserts that these records are further exempt under Exemption ( c ), because " ... these documents contain detailed references to Mr. Diachenko's substance abuse, mental health information, medical diagnoses, and medical prescription information." The Board contends that" ... where a recording of the July 23, 2019 parole hearing has been provided, [it] maintains that the privacy interests at stake outweigh the public interest and as such, withhold these documents." Although portions of the records may fall under Exemption ( c ), it is uncertain how the records can be withheld in their entirety. The Board must explain whether segregable portions can be provided. See G. L. c. 66, § lO(a); 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). 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, ~.~ Supervisor of Records cc: Deborah Becker