William Nadworny v. Massachusetts Parole Board (SPR 20200441)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 16, 2020 SPR20/0441 Stacy Book Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: 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, § lOA; also 950 C.M.R. 32.08(1). Specifically, on October 9, 2019, Mr. Nadworny requested "a copy of the (3) three enclosed classification reports dated 2/21/06 and 8/31/99 (unredacted)[.]" Previous Appeal The requested records were the subject of a prior appeal. See SPR 19/2396 Determination of the Supervisor of Records (December 16, 2019). In my December 161 h determination, I found that the Board had not met its burden to withhold the redacted portions of the records, and ordered it to provide Mr. Nadworny with a response, consistent with that order, the Public Records Law, and its regulations .. The Board provided a response on December 23, 2019, which included responsive records in redacted form. The records were redacted pursuant to Exemptions (a), (c), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f), (n). Unsatisfied with the Board's response, Mr. Nadworny petitioned this office and this appeal, SPR20/044 l, was opened as a result. Tlte 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

Stacy Book SPR20/0441 Page 2 March 16, 2020 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, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Purpose of request; identity ofrequestor 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). Accordingly, Mr. Nadworny's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1 )(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Nadworny may wish to consider another means of seeking to obtain any existing responsive records. · The Board's December 23rd response In its December 23, 2019 response, the Board asserts that the redacted portions are exempt from disclosure pursuant to Exemptions (a), (c), (f), and (n) of the Public Records Law. 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).

Stacy Book SPR20/0441 Page 3 March 16, 2020 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 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. The updated definition of Criminal Offender Record Information (CORI) states in relevant part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings.that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information ... Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration G. L. c. 6, § 167 (emphasis added). Under Exemption (a) the Board asserts that "[a]ny information that [it] has concerning a named individual[] is exempt from public disclosure pursuant to [Exemption (a)]." Citing G. L. c. 6, § 172(a)(4), the Board states that the Criminal Offender Records Information (CORI) Act limits information the Board may disseminate to the public, hence, it " ... may only disclose the disposition of certain criminal cases, the custody status, and location of convicted individuals. See also 120 C.M.R. 500.02(3) (Except as provided for in 120 CMR 500.02 (1) and (2), CORI evaluative information will not be disseminated to individuals without a service of valid subpoena and a court order.)."

Stacy Book SPR20/0441 Page 4 March 16, 2020 Based on the Board's response, it is unclear how the redacted information constitutes CORI, specifically, it is unclear how it is "information recorded in criminal proceedings that are not dismissed before arraignment," as described above. It is additionally uncertain how the information constitutes CORI evaluative information. Exemption (c) Exemption ( c) permits the withholding of: personnel and medical files or information; also any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy G. L. c. 4, § 7(26)(c). Second clause ofE xemption (c) - privacy Analysis under the second clause of Exemption (c) is subjective in nature and requires a balancing of the public's right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm'r of Real Property Dep't, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This clause does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep't of Agric. Res., 477 Mass. 280,292 (2017). The types of personal information which the second clause of this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415,427 (1988) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This clause requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Board states that it is" ... exempt from disclosing the redacted parts of the report because it references private information of particular individuals and

Stacy Book SPR20/0441 Page 5 March 16, 2020 disclosing such information is a clearly prohibited invasion of privacy." The Board further states that "[n ]aming an inmate or inmates suspected by the Department of Corrections of plotting to murder another inmate would be a clear invasion of a prisoner's privacy." Based on the Board's response, it is unclear how the information redacted constitutes "intimate details of a highly personal nature," nor how disclosure of the information would result in personal embarrassment to an individual of normal sensibilities. See PETA, 4 77 Mass. 293 at n. 13. As such, it is unclear how the redacted information is the type of information the second clause of Exemption ( c) is designed to protect. Accordingly, I find the Board has not established any privacy interests that are not substantially outweighed by the public's interest in obtaining the requested information. Exemption (I) Exemption (f) 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. As a matter of course, witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. Therefore, Exemption (f) will allow the withholding of the name and

Stacy Book SPR20/044I Page 6 March 16, 2020 identifying details of any victims, complainants and voluntary witnesses, and where the individuals can be indirectly identified even with redaction. Under Exemption (f), the Board states that it is exempt from disclosing the requested information" ... because the information sought is investigatory in nature and disclosure of this information could compromise the Parole Board's efforts to ensure public safety." Citing Bougas, the Board argues that "redacting the names of suspects in an investigation encourages Corrections Officers to be completely candid in their investigations into inmate conflicts and illegal activity within correctional facilities." The Board raises concerns that "the Department of Corrections would no longer share Classification Reports with the Parole Board if they feared that confidential information regarding investigations would be shared with the public at large." The Board also asserts that if it is required to disclose the names of inmates suspected of planning harm to others, "inmates would be reluctant to discuss threats on other prisoners, staff, or people outside the prison for fear of retaliation." Based on the Board's responses, it is unclear how releasing the names of suspects in a closed investigation would prejudice ongoing investigations or discourage testimony of voluntary witnesses. 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, 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 likely to 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

Stacy Book SPR20/0441 Page 7 March 16, 2020 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. Under Exemption (n), the Board states that "[r]evealing the requested information would pose a threat to public safety and undermine the goals of the Department of Corrections to minimize violence in corrections facilities." The Board indicates that the responsive records contain "information regarding security measures taken by the Department of Corrections to defuse a potentially life threatening situation that threatened the security of persons, including [the requestor] ..... Disclosing such security measures would jeopardize the safety of persons, i.e. inmates, staff, and visitors within the correction facility as well as people outside the prison who may be implicated in the investigation." Although the Board asserts that the redacted information involves security measures taken at a correctional facility, it is unclear how the information resembles the records listed as examples in the statute as contemplated in PETA. See PETA, 477 Mass. at 289. Particularly, it is unclear how the reports resemble "blueprints, plans, policies, procedures and schematic drawings" that relate to security measures. It is also uncertain how the redacted information is the type that "a terrorist would find useful to maximize damage" as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its "reasonable judgment" that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting "inverse correlation" between the two prongs of Exemption (n) inquiry). Therefore, although the Board states that disclosure "would jeopardize the safety of inmates and staff within the correction facility as well as people outside the prison who may be implicated in the investigation" it has not provided "sufficient factual heft" to conclude that a reasonable person would agree that disclosure of the redacted information is "likely to jeopardize public safety or cyber security" as required by Exemption (n). Id. at 290-91. Conclusion Accordingly, the Board is ordered to provide Mr. Nadworny 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.

Stacy Book SPR20/0441 Page 8 March 16, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: William Nadworny