William Nadworny v. Massachusetts Parole Board (SPR 20200518)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 25, 2020 SPR20/0518 Charles Walsh, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Walsh: 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, § 1O A; see also 50 C.M.R. 32.08(1). Specifically, Mr. Nadworny requested: "all individual 'vote sheets' of the six Parole Board Members ... that voted between May 20, 2015 and June 30, 2015 in executive session in deciding to deny or grant the parole of' the requestor. Previous Appeal The requested records have been the subject of a previous appeal. See SPR20/0192 Determination of the Supervisor of Records (February 14, 2020). In my February 14111 determination, I found that the Board had not met its burden of specificity to withhold responsive records, and ordered it to provide a new response to Mr. Nadworny, consistent with that order, the Public Records Law, and its regulations. The Board provided this response on February 24, 2020, withholding responsive records pursuant to Exemption (a) of the Public Records Law. Unsatisfied with this response, Mr. Nadworny petitioned this office and this appeal, SPR20/05 l 8, 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). 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); 950 C.M.R. 32.06(3); see also Dist. 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

Charles Walsh, Esq. SPR20/0518 Page 2 March 25, 2020 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. Current Appeal In its February 24, 2020 response, the Board states that it "is exempt from disclosing the Vote Sheet under the statutory exemption of G.L. c. 4 §7(26)(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 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 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. G. L. c. 130, § 127 provides in relevant part: The record of the board's decision shall contain a summary statement of the case indicating the reasons for the decision, including written certification that each board member voting on the issue of granting a parole permit has reviewed the entire criminal record of the applicant, as well as the number of members voting in favor of granting a parole permit and the number of members voting against granting a parole permit. Said record ofdecision shall become a public record and shall be available to the public except for such p01iion thereof which contains

Charles Walsh, Esq. SPR20/0518 Page 3 March 25, 2020 information upon which said decision was made which said information the board determines is actually necessary to keep confidential to protect the security of a criminal or civil investigation, to protect anyone from physical harm or to protect the source of any information; provided, however, that it was obtained under a promise of confidentiality. All such confidential information shall be segregated from the record of decision and shall not be available to the public. In the Board's February 24th response, it explains that it "does not release Parole Board Vote Sheets but instead, the Board publishes Records of Decision giving the reasoning of the Board in granting or denying parole." The Board argues that "[i]n this case, the Board is exempt from disclosing the vote sheet under the necessary implications of G. L. c. 127 § 130. Under G.L. c. 127, § 130, the Board must provide a Record of Decision .... " The Board additionally explains that "[i]n order to protect Board Members from fear of physical harm resulting from either a positive or negative parole vote, particularly when the petitioner has committed murder or other violent crimes, the Board keep confidential the identity of which Board Member voted to either grant or deny parole." Based on the Board's response, I find it has met its burden to show that the responsive vote sheets are exempt from disclosure by the necessary implication of G. L. c. 127, § 130. Accordingly, the Board may properly withhold the responsive records pursuant to Exemption (a). See G. L. c. 4, § 7(26)(a). Conclusion Accordingly, where I find the Board has met its burden to withhold responsive records pursuant to G. L. c. 130, § 127 as it operates through Exemption (a), I will consider this administrative appeal closed. If Mr. Nadworny is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § lO(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: William Nadworny Stacy Book