William Santiago v. Massachusetts Parole Board (SPR 20211243)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 2, 2021 SPR21/1243 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 of 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). Previous appeal This request was the subject of a previous appeal. See SPR21/0012 Determination of the Supervisor of Records (January 19, 2021). SPR21/0012 was closed with the determination that 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. In a May 7, 2021 communication, Mr. Santiago requested to be sent “another copy of [his] LS/CMI Commitment Summary.” The Board provided a response with redacted records on May 11, 2021. Unsatisfied with the Board’s May 7th response, Mr. Santiago petitioned this office and this appeal, SPR21/1243, 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 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 SPR21/1243 Page 2 June 2, 2021 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 May 7th responses In its May 7, 2021 response, the Board provided Mr. Santiago a commitment summary report which had been previously provided on November 24, 2021. The Board explained, “[s]ome portions of the above referenced 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.” Mr. Santiago appealed the response to this office based on “the Parole Board’s decision to deny me unredacted portions of the requested assessment (The Level of Service/Case Management Inventory= LS/CMI) designed by Multi-Health System (MHS), that was made at a hearing including me and [identified] Inner Parole Officer (IPO), at the Treatment Center in Bridgewater, MA.” Mr. Santiago in his appeal also mentioned that certain errors needed to be corrected in sections of the LS/CMI. 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).

Stacy Book SPR21/1243 Page 3 June 2, 2021 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 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), as mentioned above the Board stated “that “[s]ome portions of the above referenced documents have been withheld or redacted pursuant to 120 CMR 500.06 and/or 120 CMR 500.” 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;

Stacy Book SPR21/1243 Page 4 June 2, 2021 (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 reasonably segregable from documents withheld under 120 CMR 500.06(2). 120 C.M.R. 500.06 (emphasis added). As stated in this office’s prior issued determination, the above cited regulations state that the Board may not disclose evaluative information that it deems confidential and 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. See SPR21/0012 Determination of the Supervisor of Records (January 19, 2021). Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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). 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