William Santiago v. Massachusetts Parole Board (SPR 20210012)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 19, 2021 SPR21/0012 Stacy Book Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of William Santiago appealing the response of the Massachusetts Parole Board (Board) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on November 17, 2020, Mr. Santiago requested a copy his Level of Service/Case Management Inventory (LS/CMI) assessment. The Board responded on November 24, 2020 and November 27, 2020, providing a portion of the responsive records and denying access to other portions pursuant to Exemptions (a), (f), (g), and (i) of the Public Records Law. G. L. c. 4, § 7(26)(a), (f), (g), (i). Unsatisfied with the Board’s responses, Mr. Santiago petitioned this office and this appeal, SPR21/0012, was opened as a result. Purpose of request; identity of requestor 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. Santiago’s purpose in making the request has no bearing on the public status of any existing responsive records. 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). 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 SPR21/0012 Page 2 January 19, 2021 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Board’s November 24th and 27th responses In its November 24, 2020 response, the Board enclosed a commitment summary report and redacted portions of the LS/CMI report (report). The Board states “. . . documents have been withheld or redacted pursuant to 120 CMR 500.06 and/or 120 CMR 500, et seq., or if otherwise deemed confidential by the Parole Board. Please note that questions from Sections 2-5 of the LS/CMI (referenced in the Commitment Summary) are redacted because they are copyright protected and not meant for dissemination. G. L. c. 4, § 7(26).” In its November 27, 2020 response, the Board further indicated that the redacted portions of the report are exempt under Exemptions (a), (f), (g), and (i) of the Public Records Law. 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

Stacy Book SPR21/0012 Page 3 January 19, 2021 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. Under Exemption (a), the Board explained that “. . . the redacted portions of your LS/CMI risk-needs assessment are confidential and therefore exempt from disclosure Pursuant to 120 CMR 301. 04 Pre-Hearing Interview and File Review: ‘Information deemed confidential by the Parole Board will not be disclosed ... Any disclosure of other information will be in a form determined to be appropriate by the Parole Board.’” Furthermore, 120 CMR 500.06 (2)(c) exempts the Parole Board from having to disclose evaluative information that the Parole Board deems confidential.” The Regulations provide in relevant parts: Pre-hearing Interview and File Review The Parole Board shall disclose to an inmate information in that inmate’s file pursuant to 120 CMR 500.00: Dissemination of CORI, Evaluative Information, and Intelligence Information provided the inmate requests such disclosure in writing at least 30 days prior to any scheduled release or review hearing. Information deemed confidential by the Parole Board will not be disclosed. M.G.L. c. 127, § 130. Any disclosure of other information will be in a form determined to be appropriate by the Parole Board consistent with M.G.L. c. 6, § 172; c. 66; and c. 66A. The Parole Board may orally summarize available police, court, and institutional data likely to be considered by the parole hearing panel during the initial release hearing or any review hearing. 120 C.M.R. 301.04 (emphasis added). Dissemination of Evaluative Information to the Offender (1) Upon written request by the offender or his or her representative, with verified written authority, the Parole Board shall disseminate evaluative information generated by it unless disclosure of such information falls under one of the exemptions listed in 120 CMR 500.06(2). (2) The following evaluative information shall not be disseminated pursuant to M.G.L. c. 127, § 130, c. 4, § 7(26), and c. 66A: (a) information which would pose a direct and articulable threat to the safety of an individual; (b) information which would pose a direct and articulable threat to the security of a correctional facility; (c) information deemed confidential by the Parole Board; (d) documents or working papers of the deliberative process of the hearing panel. (3) All efforts shall be made to disclose evaluative information which is

Stacy Book SPR21/0012 Page 4 January 19, 2021 reasonably segregable from documents withheld under 120 CMR 500.06(2). 120 C.M.R. 500.06 (emphasis added). 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 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, 371 Mass at 62. 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. Under Exemption (f), the Board posits that “[d]isclosure of questions, answers and material used to administer or score the LS/CMI would compromise the integrity of the risk and needs assessment tool. Disclosure would also compromise the Board’s ability to accurately assess an inmate’s level of need both within the institution and after they have been released on parole. Disclosure of confidential parts of the LS/CMI risk-needs assessment would also allow inmates to artificially lower the risk they present to society or avoid special conditions of release that would help ensure public safety.” Exemption (g) Exemption (g) applies to: Trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality; but this subparagraph shall not apply to information submitted as required by law or as a condition of receiving a governmental contract or other benefit

Stacy Book SPR21/0012 Page 5 January 19, 2021 G. L. c. 4, § 7(26)(g). For this exemption to apply to withhold a record, a custodian must meet all of the following six (6) criteria contained in the exemption: (1) Trade secrets or commercial or financial information, (2) Voluntarily provided to a government entity, (3) For use in developing government policy, (4) Upon an assurance of confidentiality, (5) Information provided by law, and (6) Information not submitted as a condition of receiving a governmental contract or benefit. Under Exemption (g), the Board indicates that it is “. . . contractually obligated to keep portions of the LS/CMI confidential. The LS/CMI was designed by Multi-Health Systems and licensed to the Parole Board with a promise of confidentiality. See G.L. c. 4, § 7(26)(g) exempting from public disclosure ‘trade secrets or commercial or financial information voluntarily provided to an agency for use in developing governmental policy and upon a promise of confidentiality.’” Exemption (i) Exemption (i) permits the withholding of: questions and answers, scoring keys and sheets and other materials used to develop, administer or score a test, examination or assessment instrument; provided, however, that such materials are intended to be used for another test, examination or assessment instrument G. L. c. 4, § 7(26)(i). Under Exemption (i), the Board states that this exemption “. . . exempts production of ‘questions, answers, scoring keys and other material used to administer or score an assessment instrument.’” The above cited regulations state that the Board may not disclose evaluative information that it deems confidential. Where the Board has deemed confidential sections 2-5 of the report, I find the Board may permissibly withhold the redacted sections from disclosure under 120 C.M.R. 301.04 and 120 C.M.R. 500.06, as they operate through Exemption (a) of the Public Records Law. As such, I decline to opine on the Board’s Exemptions (f), (g), and (i) claims, supporting non-disclosure of the redacted information.

Stacy Book SPR21/0012 Page 6 January 19, 2021 Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Santiago 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, § 10(b) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: William Santiago