Shane Moffat v. Department of Correction - Legal Division (SPR 20200515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supen•isor ofR ecords March 24, 2020 SPR20/0515 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA O1 757 Dear Ms. Silvia: I have received the petition of Shane Moffat 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. Moffat requested "Memorandums of Understandings (MOU) between the DOC and federal agencies under the Department of Justice." The Department responded on January 8, 2020, providing responsive documents, and denying records claiming Exemption (b) and (f). Unsatisfied with the Department's response, Mr. Moffat petitioned this office and SPR20/0053 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). 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, § 1O (b )(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) 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 SPR20/0515 Page 2 March 24, 2020 The Department's January 81 Response " In its January 3th response, the Department states they have "located another fourteen (14) documents, which may be responsive to your request. However, the Department is denying your request for these fourteen documents, as the requested information pertains to law enforcement and investigatory officials any disclosure would likely prejudice effective law enforcement, hence the requested materials are exempt from disclosure pursuant to M. G. L. c. 4, §§ 7 (26)(b) and (f)." Further, the Department states it is "unable to provide a list of the documents being withheld, as providing a list of documents or MOUs ... would, in and of itself, alert the public to the type of information and intelligence gathering that is being collected, and may disclose the identity of confidential informants. Releasing this information to the public may cause persons, both incarcerated and not incarcerated, to alter their behavior in order to avoid detection." The Department explains " ... the specific terms of each document or MOU involves internal personnel rules and practices of sharing information and staff within governmental units, and as such are exempt from disclosure pursuant to M. G. L. c. 4, § 7 (26)(b) See also SPR 18- 026 ... MOU may provide detail as to which staff members may work within another community or agency, which agency may oversee any particular investigation or matter, and what information the Department or other agency may be sharing. The release of these specific terms would reveal. .. whether information shared is related to security threat groups, drug trafficking, computer crimes, or otherwise. The release of such information would allow inmates or those on the outside to redirect communications to avoid detection. Similarly, identification of when or what information is being shared with federal agencies or communities nationwide may allow criminal networks to avoid detection on a national level." Exemption (b) 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 governmental 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 is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep't of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom oflnformation Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an

Kate M. Silvia SPR20/0515 Page 3 March 24, 2020 agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427,432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep't of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Exemption (/) 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 289-290. The Department's January 81 h response did not contain the specificity required in a denial of access to public records in their entirety. Accordingly, to the extent that portions of the responsive records may fall within Exemptions (b) and (f) of the Public Records Law, I find that the Department may withhold those portions from disclosure. Further, the Department references a previous determination, where I found the agency's initial response did not contain the specificity required in a denial of access to public records. In my January 16, 2018 determination I found where the agency claimed the responsive records "constitute intelligence information," it did not explain how disclosure of the responsive records or any segregable portion thereof

Kate M. Silvia SPR20/0515 Page 4 March 24, 2020 "would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest" as required to withhold records under Exemption (f). Consequently, I find the Department must explain whether segregable portions can be provided. See 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). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). See SPR18/0026 (January 16, 2018). Conclusion Accordingly, the Department is ordered to provide Mr. Moffat with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Shane Moffat