Seth Kershner v. Department of Correction - Legal Division (SPR 20192389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 10, 2019 SPR19/2389 Kate M. Silvia Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Seth Kershner 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 June 25, 2019, Mr. Kershner requested "completed copies of standards compliance audits, from Jan. 2016 until the date of this request for [10 institutions and agencies]." The Department provided a response on September 27, 2019, including responsive records in redacted form. The records were redacted pursuant to Exemptions (a) and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (n). The Department indicated that it did not possess certain responsive records. Unsatisfied with the Department's response, Mr. Kershner petitioned this office and this appeal, SPRl 9/2389, 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, § 1O A( 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. 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 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 SPRl 9/2389 Page 2 December 10, 2019 custodian must provide the responsive records. The Department's September 27'" response In its September 2 7, 2019 response, the Depaiiment stated that it redacted information about current inmates under" ... G. L. c. 6, §§ 167-178 (b), the Criminal Offender Records Information (CORI) statute, and 103 Code of Massachusetts Regulations (CMR) 153, CORI Regulations. Protected CORI information includes names, criminal and prison records, and other identifying information regarding an inmate." The Department also indicated that it redacted portions of the records pursuant to Exemption (n). 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). 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 recordt "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. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings,

Kate M. Silvia SPR19/2389 Page 3 December i 0, 2019 structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection ( c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty of the custodian ofrecords to exercise reasonable judgment to determine whether release of the record is lil~ely to jeopardize public safety. Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines "whether, and to what degree, the record sought resembles the records listed as examples in the statute;" specifically, the "inquiry is whether, and to what degree, the record is one a terrorist 'would find useful to maximize damage.'" People for the Ethical Treatment of Animals (PETA ) v. Dep 't of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines "the factual and contextual support for the proposition that disclosure of the record is 'likely to jeopardize public safety.'" Id. at 289-90. The PETA decision further provides that "[b] ecause the records custodian must exercise 'reasonable judgment' in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian's determination given the context of the particular case." Id. The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Depaiiment's response merely cites Exemptions (a) and (n) without any further explanation as to the exemptions' applicability to the requested records. In the Department's response, it stated that it redacted ce1iain information including "names, criminal and prison records, and other identifying information regarding an inmate[,]" from the responsive records under G. L. c. 6, §§ 167-178 (b) and 103 C.M.R. 153. However, the Department did not explain how the statute and regulation permit it to redact such information from the responsive records. Please be advised that for Exemption (a) to apply, said statute must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. Further, with respect to Exemption (n), aside from stating the language of the statute, the Department did not provide any explanation as to how the exemption allows the withholding of the redacted information. A records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. Consequently, the Depaiiment must provide a detailed response to specifically explain how the cited statute and/or regulation, as they

Kate M. Silvia SPRl 9/2389 Page 4 December 10, 2019 operate through Exemption (a), as well as Exemption (n), apply to withhold the redacted information from disclosure in compliance with the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Kershner with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (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, ~.~ Supervisor of Records cc: Seth Kershner