William Nadworny v. Massachusetts Parole Board (SPR 20210670)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 1, 2021 SPR21/0670 Stacy Book Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: 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, § 10A; see also 950 C.M.R. 32.08(1). On December 1, 2020, Mr. Nadworny requested “a copy of the (3) five [sic] enclosed Classification Reports dated 2/21/06 and 8/31/99 (unredacted).” The Board provided a response on January 7, 2021, denying access to portions of the reports under Exemptions (a), (c), (f), and (n) of the Public Records Law. G. L. c. 4, § 7(26)(a), (c), (f), (n). Unsatisfied with the Board’s response, Mr. Nadworny petitioned this office and this appeal SPR21/0670, 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. Nadworny’s purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party’s access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process “shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means”). As such, Mr. Nadworny may wish to consider another means of seeking to obtain any existing 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 SPR21/0670 Page 2 April 1, 2021 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). 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 January 7th response In its January 7, 2021 response, the Board asserts that the redacted portions are exempt from disclosure pursuant to Exemptions (a), (c), (f), and (n). 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.”

Stacy Book SPR21/0670 Page 3 April 1, 2021 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. Under Exemption (a), the Board asserts that “[a]ny information that [it] has concerning a named individual[] is exempt from public disclosure pursuant to [Exemption (a)].” Citing G. L. c. 6, § 172(a)(4), the Board states that the Criminal Offender Records Information (CORI) Act limits information the Board may disseminate to the public, hence, it “. . . may only disclose the disposition of certain criminal cases, the custody status, and location of convicted individuals. See also 120 C.M.R. 500.02(3) (Except as provided for in 120 CMR 500.02 (1) and (2), CORI evaluative information will not be disseminated to individuals without a service of valid subpoena and a court order.).” The Board further explains that “[t]he redacted information does not relate to information that was dismissed before an arraignment, but as information gathered after the named individuals had been incarcerated for other offenses. Just as in Kordis v. Superintendent, Souza Baranowski Correctional Center, here the redacted information collected by the Massachusetts Department of Corrections would not exist, but [f]or the incarceration of the named individuals. See Kordis v. Superintendent, Souza Baranowski Correctional Center, 58 Mass. App. Ct. 902, 903 (2003). . . .” The current definition of Criminal Offender Record Information (CORI) states in relevant part: [R]ecords and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information . . . Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167 (emphasis added). Based on the Board’s response, it is unclear how the redacted information constitutes CORI, specifically, it is unclear how it is “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above.

Stacy Book SPR21/0670 Page 4 April 1, 2021 Exemption (c) Exemption (c) permits the withholding of: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation. G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Attorney Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Property Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988) ---------------------------- (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner. Id. at 292. Under Exemption (c), the Board states that it “. . . is exempt from disclosing the redacted parts of the report because it references private information of a particular individual or individuals and disclosing such information is a clearly prohibited invasion of privacy.” The Board further states that “[n]aming an inmate or inmates suspected by the Department of Corrections of plotting to murder another inmate would be a clear invasion of a prisoner’s privacy.” Based on the Board’s response, it remains unclear how the names and information redacted from the records constitute intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is

Stacy Book SPR21/0670 Page 5 April 1, 2021 additionally uncertain whether the information is available from other sources. PETA, 477 Mass. at 292. Also, the Board did not provide additional information with respect to the balancing test which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. 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 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. Att’y 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 289-90. Under Exemption (f), the Board states that it is exempt from disclosing the requested information “. . . because the information sought is investigatory in nature and disclosure of this information could compromise the Parole Board’s efforts to ensure public safety.” Citing Bougas, the Board argues that “redacting the names of suspects in an investigation encourages Corrections Officers to be completely candid in their investigations into inmate conflicts and illegal activity within correctional facilities. If the Department of Corrections were compelled to share with the general public the name of every inmate suspected of being in conflict with another inmate, or suspected of being engaged in illegal activity, there would be an increase in violence within the prisons.” The Board raises concerns that “the Department of Corrections would no longer share Classification Reports with the Parole Board if they feared that confidential information regarding investigations would be shared with the public at large.” The Board also asserts that if it is required to disclose the names of inmates suspected of planning harm to others, “inmates would be reluctant to discuss threats on other prisoners, staff, or people outside the prison for fear of retaliation.”

Stacy Book SPR21/0670 Page 6 April 1, 2021 Based on the Board’s response, it is unclear how releasing the names of suspects in a closed investigation would prejudice ongoing investigations or discourage testimony of voluntary witnesses. Particularly, where Mr. Nadworny claims that 2 of the suspects are deceased, it is unclear how disclosure of those names would compromise any future investigations. Exemption (n) Exemption (n) permits the withholding of: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. It is the duty of the custodian of records to exercise reasonable judgment to determine whether release of the record is likely to jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. Under Exemption (n), the Board states that “[r]evealing the requested information would pose a threat to public safety and undermine the goals of the Department of Corrections to minimize violence in corrections facilities.” The Board indicates that the responsive records contain “information regarding security measures taken by the Department of Corrections to

Stacy Book SPR21/0670 Page 7 April 1, 2021 defuse a potentially life threatening situation that threatened the security of persons, including [the requestor]. . . . Disclosing such security measures would jeopardize the safety of persons, i.e. inmates, staff, and visitors within the correction facility as well as people outside the prison who may be implicated in the investigation.” Although the Board asserts that the redacted information involves security measures taken at a correctional facility, it is unclear how the information resembles the records listed as examples in the statute as contemplated in PETA. See PETA, 477 Mass. at 289. Particularly, it is unclear how the reports resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the redacted information is the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Therefore, although the Board states that disclosure “would jeopardize the safety of inmates and staff within the correction facility as well as people outside the prison who may be implicated in the investigation” it has not provided “sufficient factual heft” to conclude that a reasonable person would agree that disclosure of the redacted information is “likely to jeopardize public safety or cyber security” as required by Exemption (n). Id. at 290-91. In camera inspection In the alternative, in order to facilitate my review, the Board may provide this office with un-redacted copies of responsive records for in camera inspection. See 950 C.M.R. 32.08(4). After I complete my review of the records, I will return the records to the Board’s custody and issue an opinion on the public or exempt nature of the records. 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. Mass. 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 this office that an in camera inspection is necessary to make a proper finding. Records are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.08(4)(c). This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit copies of the relevant records to this office upon a promise of confidentiality. This office does not release records reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, records reviewed in

Stacy Book SPR21/0670 Page 8 April 1, 2021 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 Board is ordered to provide a further response regarding its Exemptions (a), (c), (f), and (n) claims or provide the records for an in camera inspection without delay. Please be advised that, unlike the materials provided for in camera review, any additional correspondence would be placed in the file for this appeal and would be subject to public disclosure as a public record. Sincerely, Rebecca S. Murray Supervisor of Records cc: William Nadworny