John Diaz v. Department of Correction - Legal Division (SPR 20192206)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 12, 2019 SPR19/2206 Kate M. Silvia Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of John Diaz 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, Mr. Diaz requested "[t]he J)epmiment of Correction Superintendent Special Investigators (SSI) job description and the necessary steps that he/she must take to conduct a proper investigation" and "the Department of Correction Inner Perimeter Security (I.P.S) designated person responsible for clearing inmate security clearances for inmate seeking program/work opportunities." Previous appeal This request was the subject of a previous appeal. See SPRl 9/1928 Determination of the Supervisor of Records (September 30, 2019). I closed SPR19/1928 by ordering the Department to provide Mr. Diaz with a written response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. In a response dated October 18, 2019 the Depmiment provided certain records but did not provide a specific section of 103 DOC 518 relating to the investigation process. Mr. Diaz appealed and SPR19/2206 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, § 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). 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 M. Silvia SPR19/2206 Page 2 November 12, 2019 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( d)(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). Tlte Department's Oct()ber 18'11 response In its October 18111 response, the Department indicated that the investigative process outlined in 103 DOC 518, Inner Perimeter Security Team is exempt pursuant to Exemption (a). 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 see 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Cami, 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 individuals or entities to whom the records are to be provided; the statute must expressly limit access to the listed individuals or entities. In its October 18th response, the Department stated that the investigation process as outlined in 103 DOC 518 is exempt from G. L. c. 124, § 1( q) which provides in pertinent 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 call the commissioner shall: ... (q) make and promulgate necessary rules and regulations incident to the exercises of his powers and the performance of his duties including but not limited

Kate M. Silvia SPR19/2206 Page 3 November 12, 2019 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. Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the records custodian to prove with specificity the exemption which applies. G. L. c. 66, § lO(d)(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. See also 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. In his appeal petition Mr. Diaz indicates that he seeks only one specific section of the policy that references the process to "conduct interviews pertaining to current investigations." The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department simply cites Exemption (a) and G. L. c.124, § l(q) without any further explanation as to the statute's applicability to the responsive records. A records custodian is required to not only cite an exemption but to specifically explain the applicability of the exemption to the requested records for compliance with the Public Records Law G. L. c. 66, § lO(d)(iv). Accordingly, I find that the Department has not established how G. L. c. 124, § l(q) applies to withhold the record(s) or portions of the record(s) at issue in this appeal. Conclusion Accordingly, the Department is ordered to provide Mr. Diaz a response in a manner consistent with this order, the Public Records Law and its Regulations 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: John Diaz