Andrew Stenico v. Department of Correction - Souza-Baranowski Correctional Center (SPR 20211036)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 6, 2021 SPR21/1036 Vicki Pineda Souza-Baranowski Correctional Center Department of Correction P.O. Box 8000 Shirley, MA 01464 Dear Ms. Pineda: I have received the petition of Andrew Stenico 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 April 1, 2021, Mr. Stenico requested documents relating to housing assignments and assessment risks. The Department responded on April 14, 2021, indicating that responsive records do not exist for the first item, and that it was withholding records responsive to the second item pursuant to Exemption (f). Unsatisfied with the Department’s response, Mr. Stenico appealed, and this case was opened as a result. 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. 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

Vicki Pineda SPR21/1036 Page 2 May 6, 2021 The Department’s April 14th and April 26th Responses In its April 14th response, and in an email to this office on April 26, 2021, the Department indicated that no records exist responsive to Mr. Stenico’s first item, and that records responsive to the second item are being withheld under Exemption (f). See G. L. c. 4, § 7(26)(f). Records in Existence The Department explained “that inmates receive a review letter every thirty (30) days. [T]he letter does not state the reason for the denial.” Further, in an email to this office on April 26, 2021, the Department reiterated “that what [Mr. Stenico] is seeking doesn’t exist.” The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). ). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In this case, the Department confirmed it does not possess records responsive to the first item of Mr. Stenico’s request. 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. 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 289-90.

Vicki Pineda SPR21/1036 Page 3 May 6, 2021 Witness provided information is essential to efficient and effective law enforcement. This exemption is intended to allow investigative officials to provide an assurance of confidentiality to private citizens so that they will speak openly and voluntarily about matters. Id. at 62. Any information contained in a witness statement, which if disclosed would create a grave risk of directly or indirectly identifying the voluntary witness is subject to withholding. Globe Newspaper Co., 388 Mass. at 438. The disclosure of the names and other identifying information of victims, complainants and voluntary witnesses may deter other potential witnesses and citizens from providing information to law enforcement agencies in future investigations. In its April 14th response, the Department stated “[r]egarding [the] request for documentation of the housing risk assessment list, be advised that the record [Mr. Stenico is] seeking is not permitted as it is intelligence information, which is exempt from disclosure pursuant to G. L. c. 4, § 7(26)(f). In an email to this office on April 26, 2021, a representative of the Department reiterated “[t]hat list is confidential and is created by gathering intelligence on inmates” and used to protect victims. The Department’s response did not contain the specificity required in a denial of access to public records. See G. L. c. 66, § 10(b)(iv) (“the burden shall be upon the custodian to prove with specificity the exemption which applies”); see also Globe Newspaper Co. v. Police ------------------------- Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Specifically, the Department has not met its burden to show how the redacted portions fall within Exemption (f). It is not clear from the Department’s response whether there is an ongoing investigation, and what the nature of the investigation is. As a result, I find the Department did not satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Regulations. Further, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4). Conclusion Accordingly, the Department is ordered to provide Mr. Stenico with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Vicki Pineda SPR21/1036 Page 4 May 6, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Stenico