William Nadworny v. Massachusetts Parole Board (SPR 20192187)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 7, 2019 SPR19/2187 Cominey E. Dohe1iy, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA.01760 Dear Attorney Doherty: I 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, § 1O A; see also 50 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 under the jurisdiction of the agency stored in the files of William Nadworny, the Victims Unit, and/or files of the Parole Board Members." Purpose of Request; Identity of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any· greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Previous Appeal This request was the subject of a previous appeal. See SPR 19/1794 Determination of the Supervisor of Records (September 17, 2019). In my September 17111 determination I ordered the Board to provide Mr. Nadworny with a supplemental response to his request for records. The Board provided Mr. Nadworny with a supplemental response on October 3, 2019, providing fmiher detail for its claims that Exemptions (a) and (c) exempt the responsive records from disclosure. · 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

Cominey E. D0he1iy, Esq. SPR19/2187 Page 2 November 7, 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, § 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, § lO(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. The Board's October 3rd Response In its October 3, 2019 response, the Board identifies the responsive records it possesses, stating that "[t]here are two documents in your parole file that are responsive to your request. Both of these documents are letters of opposition authored by civilians. One letter was received in 1991 and the other was received in 2000." The Board further states: "[t]hese letters are exempt from public disclosure under M.G.L. c. 4, §7(26)(a) (the statutory exemption) and M.G.L. c. 4, §7(26)(c) (the privacy 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 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 paiiicular records to a defined group of individuals or entities. A statute is not a basis for exemption if it merely lists

Cominey E. Doherty, Esq. SPR19/2187 Page 3 November 7, 2019 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. To support its Exemption (a) claim, the Board cites the Criminal Offender Record Information (CORI) Statute, G. L. c. 6, § 172, and G. L. c. 127, § 130. G. L. c. 127, § 130 provides, in paii, that parole information shall be deemed a public record "except for such pmiion 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." G. L. c. 127, § 130; see also 120 C.M.R. 400.01(2). The Board states that "[b ]oth letters contain evaluative and intelligence information regarding the impact of the crime on the author(s), his or her opinion(s) regarding parole release, and safety concerns should his or her identity be revealed." In a telephone conversation with a staff member of the Public Records Division, the Board provided additional information regarding safety concerns relating to the release of the documents to the requestor. The Board has, therefore, demonstrated that the requested records fall within the scope of the Board's authority to withhold pursuant to§ 130. See G. L. c. 127, § 130; see also 120 C.M.R. 400.01(2). Conclusion Accordingly, whereas I find the Board may permissibly withhold the responsive records under Exemption (a), I decline to opine on the Board's Exemption (c) claim. Therefore, I will now consider this administrative appeal closed. If Mr. Nadworny is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 1O (b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: William Nadworny Stacy Book