Joseph P. Schmitt v. Department of Correction - Legal Division (SPR 20202126)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2020 SPR20/2126 Kate Silvia Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Ms. Silvia: I have received the petition of Joseph P. Schmitt 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). Specifically, Mr. Schmitt requested the: “[m]ost recent qualified examiner reports” regarding an identified person. In an October 6, 2020 response, the Department denied the request in its entirety under the Criminal Record Offender Information Act, as it operates through Exemption (a), as well as the Department’s regulations (103 C.M.R. 157; 103 C.M.R. 157.07; 103 C.M.R. 157.08; 103 C.M.R. 157.09(3) and 103 DOC 153) and the first clause of Exemption (c). As a result of the Department’s denial, Mr. Schmitt petitioned the Supervisor of Records (Supervisor), and this 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, § 10A(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, § 10(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 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 Silvia SPR20/2126 Page 2 November 17, 2020 burden of establishing the applicability of an exemption). In camera inspection In order to facilitate a determination as to the applicability of the Department’s exemption claims allow the Department to withhold the requested “qualified examiner report” in its entirety, the Department must provide the Supervisor with an un-redacted copy of the responsive report for in camera inspection. 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 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 the Supervisor that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. The Supervisor and the Public Records Division are not the custodians of records examined in camera; therefore, any request made to the Supervisor or the Public Records Division for records being reviewed in camera will be denied. 950 C.M.R. 32.08(4)(c). The Supervisor has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to the Supervisor upon a promise of confidentiality. The Supervisor 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. The Department may provide the Supervisor with a further explanation of its position regarding the Department’s denial to provide the responsive records and the applicability of the exemption claim. Please be advised that, unlike the materials provided for in camera inspection, any such additional correspondence would be placed in the file for this appeal and would be available to the public. Conclusion Accordingly, the Department is ordered to provide this office with the un-redacted record(s) within 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.

Kate Silvia SPR20/2126 Page 3 November 17, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Joseph P. Schmitt