John Diaz v. Department of Correction - Legal Division (SPR 20200745)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2020 SPR20/0745 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 John Diaz appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2020 Mr. Diaz stated as follows: “For quite some time, I have been attempting to receive an answer to two questions: 1. What are the necessary steps that the Department … Superintendent Special Investigator (S.S.I.) must take to perform a proper investigation, regarding a complaint made by a prison inmate. 2. What are the criteria that the Department … inner perimeter security designated person for inmate work/program, security clearances, use in order to grant/rescind an inmate’s security clearance.” Unsatisfied with the Department’s response, Mr. Diaz appealed and SPR20/0745 was opened as a result. Previous appeals This request was the subject of previous appeals. See SPR19/1928 Determination of the Supervisor of Records (September 30, 2019); SPR19/2206 Determination of the Supervisor of Records (November 12, 2019). I closed SPR19/2206 by ordering the Department to provide Mr. Diaz with a written response to the request, provided in a manner consistent with the order, the Public Records Law and its Regulations. The Department provided a response. 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, § 10A(d); 950 C.M.R. 32.03(4). “Public 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 SPR20/0745 Page 2 May 21, 2020 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, § 10(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. The Department’s April 28, 2020 Response In its April 28th response, the Department stated in part, “the records are exempt from disclosure pursuant to Exemptions (b) and (f) of the Public Records law, G. L. c. 4, § 7 (26)(b), (f).” 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 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 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 of Information Act, which provides an exemption for records which are "related solely to the internal personnel rules and practices of an agency"); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom lnformation Act). Exemption (f) 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

Kate M. Silvia SPR20/0745 Page 3 May 21, 2020 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. Conclusion Upon review of the file, it does not appear from his appeal petition that Mr. Diaz is appealing the Department’s response. Consequently, it is unclear what the basis of Mr. Diaz’s appeal is. Mr. Diaz is reminded that all petitions for appeal "shall specifically describe the nature of the requestor's objections to the response or failure to timely respond." 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Mr. Diaz may wish to clarify this matter and his objections to the Department’s response. Mr. Diaz is also reminded that an appeal to this office must be filed within ninety calendar days of the date of the request letter, or within ninety calendar days of the date of a written response from the record custodian. See 950 C.M.R. 32.08(1)(d); 950 C.M.R. 32.08(1)(e). Sincerely, Rebecca S. Murray Supervisor of Records cc: John Diaz