David Baxter v. Department of Correction - Legal Division (SPR 20192429)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 18, 2019 SPR19/2429 Kate M. 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 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 of Investigative Services; 2. Any policy on how the Office of Investigative Services investigated Security Threat Group (STG) prisoners and the policy on how one's STG status is determined; 3. The policy on how an STG prisoner 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 "STG" activity between [self] and an alleged association with Bloods' members on August 2, 2019. Prior appeal The requested records were the subject of a prior appeal. See SPRl 9/2144 Determination of the Supervisor of Records (Supervisor) (October 31, 2019). In its initial response on October 4, 2019, the Depa1iment withheld the STG Management section of 103 DOC 514 under Exemption (a) and G. L. c. 124, § l(q). Also in its response, the Department provided sections of the policies that are considered public, and informed Mr. Baxter that it has no records responsive to his Request No. 4. As a result, Mr. Baxter petitioned the Supervisor and the prior appeal was opened. In my October 31st determination, I found that the Department did not meet its burden of specificity in withholding any policies pertaining to STGs under the state cited in its October 4111 response. I 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 SPR19/2429 Page 2 December 18, 2019 ordered the Department to provide Mr. Baxter with a further response to request. On November 6th, the Department provide a response citing Exemptions (b) and (f) of the Public Records Law, at the same time providing Mr. Baxter with internal forms in blank format regarding STG status and classification, and the STG Management policy 103 DOC 514 in redacted format. Dissatisfied with the November 6th response, Mr. Baxter petitioned the Supervisor, and .the current appeal was opened. 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) (written response must "identify any records, categories of records or p01iions 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 (b) The Department claimed it withheld certain portions of the STG Management policy 103 DOC 514 pursuant to Exemption (b) of the Public Records Law. The Department asserts, "[i]nformation regarding the procedures used by correctional officers during law enforcement efforts relates solely to the internal workings of the [Department]. Moreover, disclosure of this information could prove detrimental to the [Department's] law enforcement efforts. Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b ). The general purpose of the cognate federal exemption, however, is to relieve agencies of the burden of assembling and maintaining for public inspection matters in which the public cannot reasonably be expected to have a legitimate interest.

Kate M. Silvia SPR19/2429 Page 3 December 18, 2019 For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. Exemption (I) In its November 6111 response, the Department indicated it redacted portions of the STG Management policy under Exemption (f). The Depaiiment states, "[t]he release of this information may allow inmates to alter their actions to avoid detection of misconduct. Exemption (f), the investigatory exemption, permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. C. 4, §7 (26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Attorney Gen., 52 Mass. App. Ct. 244,248 (2001); Reinstein v. Police Comm'r of Boston, 378 Mass. 281,290 n.18 (1979). Exemption (f) invites a "case-by case consideration" of whether disclosure "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest." See Reinstein, 378 Mass. at 289-90. In camera inspection In order to analyze the legal basis of the Department's position, it is the finding of this office that an in camera inspection of an un-redacted copy of the Department policy which was provided to Mr. Baxter would facilitate a determination as to the applicability of the Department's exemption claims. See 950 C.M.R. 32.08(4). After I complete my review of the documents, I will return the record to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4); see also Bougas, 371 Mass. at 66 (explaining that "[o ]n doubtful questions an in camera inspection may be appropriate"). The authority to require the submission of records for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(4); see also G.L. c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial

Kate M. Silvia SPR19/2429 Page 4 December 18, 2019 system. See Rock v. Massachusetts Comm'n Against Discrimination, 384 Mass. 198,206 (1981) (administrative agency entitled deference in the interpretation of its own regulations). Records are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with govermnental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. Order Accordingly, the Department is ordered to provide this office with an un-redacted copy of the STG Management policy, 103 DOC 514 without delay. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: David Baxter