David Baxter v. Department of Correction - Legal Division (SPR 20192144)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 31, 2019 SPR19/2144 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of David Baxter appealing the response of the Department of Correction (Depaiiment) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Baxter requested: 1. The policy of the Office oflnvestigative Services; 2. Any policy on how the Office of Investigative Services investigated STG prisoners and the policy on how one's STG status is determined; 3. The policy on how an STG prison is to renounce gang involvement, and any policy on how a renounced alleged gang member is reinstated; and 4. Any communication, email, phone transcripts, written letter(s) to Paul J. Henderson, Deputy Commissioner of Field Services from the Inner Perimeter Security team at MCI Concord, concerning a so-called "STG" activity between [s elf] and an alleged association with Bloods' members on August 2, 2019. In an October 4, 2019 response, you informed Mr. Baxter that the records he requested for any policy pertaining to Security Threat Group(s) (STG) is not a public policy pursuant to 103 DOC 514 and G. L. c. 124, § 1( q) as the statute and regulations operate through Exemption (a) of the Public Records Law. The Department provided information regarding STG that is not restricted. No responsive records The Depaiiment also informed Mr. Baxter that it has no records responsive to Request Number 4. Under the Public Records Law, the duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the 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

Kate Silvia SPRl 9/2144 Page 2 October 31, 2019 time of the request. See G. L. c. 4, § 7(26). There is no obligation to create a record in response to a public records request. 32 Op. Att'y Gen. 157, 165 (May 18, 1977). 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, § 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 ... "); 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). 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 arecord 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.

Kate Silvia SPR19/2144 Page 3 October 31, 2019 G. L. c. 124, § l(q) The statute that the Department cites that allows the Commissioner of the Department to promulgate necessary rules and regulations to exercise his/her powers and duties is G. L. c. 124, § 1( q). It states in pe1iinent part: Section 1. In addition to exercising the powers and performing the duties which are otherwise given him by law, the commissioner of correction, in this chapter called the commissioner, shall ... ( q) make and promulgate necessary rules and regulations incident to the exercise of his powers and the performance of his duties including but not limited to rules and regulations regarding nutrition, sanitation, safety, discipline, recreation,. religious . services, communication and visiting privileges, classification, education, training, employment, care, and custody for all persons committed to correctional facilities. G. L. c. 124, § l(q). 103 DOC 514 The Department cites 103 DOC 514, a policy made by the Commissioner pertaining to STG Management. Your response asserts, "[p] lease be advised that 103 DOC 514, [STG Management] is not a public policy." However, I find the Department has not met its burden of specificity in withholding any policies pertaining to STGs under the statute cited in your October 4th response. Burden of specificity The Department denied Mr. Baxter's request, in its entirety, under G. L. c. 124, § l(q); 103 DOC 514 and Exemption (a) without providing the requisite support to demonstrate that the cited statute allows the Department to withhold the responsive policies. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(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, § lO(a). Conclusion Accordingly, the Depmiment is ordered to provide Mr. Baxter with a response to the request, in a manner cons.istent with this order, the Public Records Law and its Regulations

Kate Silvia SPR19/2144 Page 4 October 31, 2019 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 Supervisor of Records cc: David Baxter