William Nadworny v. Massachusetts Parole Board (SPR 20211601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 13, 2021 SPR21/1601 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).” Previous appeal This request was the subject of a previous appeal. See SPR21/0670 Determination of the Supervisor of Records (April 1, 2021). In my April 1st determination, I found the Board had not met its burden to withhold portions of the records under Exemptions (a), (c), (f), and (n). Accordingly, the Board was ordered to provide Mr. Nadworny with a response. The Board provided a response on April 13, 2021. Unsatisfied with the Board’s response, Mr. Nadworny petitioned this office and this appeal, SPR21/1601, 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. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all 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 SPR21/1601 Page 2 July 13, 2021 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 The Board’s April 13th response In its April 13, 2021 response, the Board reiterates that the redacted portions are exempt from disclosure under 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 Att’y 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 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 states “[i]n Hawkins v. Commissioner of Correction, . . . [t]he court held that classification and disciplinary reports were CORI protected materials

Stacy Book SPR21/1601 Page 3 July 13, 2021 because ‘[t]he definition of ‘[c]riminal offender record information’ in G.L. c. 6, § 167, includes ‘records and data in any communicable form compiled by a criminal justice agency which concern an identifiable individual and relate to ... incarceration ...’ Hawkins, 406 Mass. at 900[.]. . .” The Board further states, “. . . such a disclosure would have significant collateral consequences for named individuals in the Classification report. These consequences include damage to reputation and barriers to employment and housing opportunities. As a public policy, courts and the legislature have noted that the disclosure of CORI information is disfavored where the information can have collateral consequences to criminal offenders in obtaining employment and housing that can lead to recidivism. Where, as here, such disclosure is not only against stare decisis, but also against the legislative intent of protecting individuals with criminal records from the potential collateral consequences that might otherwise arise from public access to CORI material, the Supervisor of Records should recognize that the requested material is not a public record and that the Parole Board may withhold the information under the statutory exception.” 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. 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).

Stacy Book SPR21/1601 Page 4 July 13, 2021 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. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. 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 this “. . . specific public record request does not concern the public’s ‘recognized right in knowing whether public servants are carrying out their duties in a law-abiding and efficient manner’ as noted in the PETA case. Indeed, no public officials’ names were redacted in the Classification Reports he has already received. . . . As noted above, Classification reports contain intimate details of highly personal nature that would embarrass an individual of normal sensibilities if they were made public. For instance, the reports note if the named subject of the report has engaged in homosexual activity while incarcerated, or should be considered a sexually dangerous person, or suffers from mental illness or drug addiction, has committed spousal abuse, or is a gang member, or has been the victim of- sexual assault.” Further, the Board states, “. . . the reports sometimes name an inmate’s victims and witnesses in describing the inmate’s criminal history. Mr. Nadworny is specifically seeking the redacted name or names of one or more prisoners who were the subject of a Department of Corrections investigation into a murder for hire plot under the public records law. Where, as is the case here, a request ‘seeks records concerning the alleged misconduct of a private person’, rather than a public official, the Supervisor should find ‘little to offset the risk of adverse collateral consequences arising from’ disclosing the names of the individuals. See Boston Globe Media Partners, LLC v. Department of Criminal Justice Information Services, supra. As the Supreme Judicial Court noted in the Globe Newspaper Company & another v. Police

Stacy Book SPR21/1601 Page 5 July 13, 2021 Commissioner of Boston, under the privacy exemption to the public records law, ‘there can be no clearer example of an unwarranted invasion of privacy than to release to the public that another individual was the subject of [a criminal] investigation’ and such a disclosure ‘would be a clearly prohibited 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 the “Department of Corrections Inmate Security Classification process is an ongoing process of collecting and evaluating information, which is then recorded in Classification Reports, about each inmate to determine the inmate’s risk and need for appropriate confinement, treatment, programs, and employment assignment, whether in a facility or the community. As part of the Classification the Department of Corrections from time to time, may share information with criminal justice agencies for the purpose of enhancing public safety. While it may be inappropriate for a blanket exemption of disclosure of Classification Reports under the investigatory exemption, some Classification Reports will contain investigatory material, that if disclosed, would prejudice effective law enforcement.” The Board also states, “[t]he unredacted Classification Reports Mr. Nadworny requests contain information about an investigation into other inmates in the custody of the Department of Corrections. The Board does not argue that the entire record should be withheld under the investigatory exemption. However, just as it was appropriate to redact the names of police officers involved in the closed investigation of the Amesbury Police Chief in the Antell case to

Stacy Book SPR21/1601 Page 6 July 13, 2021 prevent discord and animus within the Police Department where the accused and accusers worked together, here it is appropriate for the safety of staff and inmates, to redact the names of inmates who may be incarcerated with Mr. Nadworny to prevent discord, animus, and violence in this case.” 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 “Classification reports contain not only the names of individual inmates and the details of their crimes, but can also contain the names, addresses and places of business of victims, witnesses, or family members. The reports note whether inmates have ever been involved in gang activity and what role they played in the gang. They may include the names and locations of enemies and codefendants. The reports contain

Stacy Book SPR21/1601 Page 7 July 13, 2021 physical and mental health information about prisoners and risk assessments. . . . Where revealing the requested information under the public records act would pose a threat to, at least, individuals named in the requested reports, but also to staff, other inmates as well as potential members of the general public, and disclosure would undermine the security measures taken by the Department of Corrections to minimize violence in its corrections facilities, the Parole Board reasonably withheld the information in the interest of public safety.” The Board explains that “Mr. Nadworny is requesting inmate classification records which relate to the Department of Corrections’ security measures, policies and procedures, emergency preparedness and threat or vulnerability assessments, relating to the security or safety of inmates, staff and threats to public safety. See 103 C.M.R. 420.06 []. More specifically Mr. Nadworny is seeking information regarding security measures taken by the Department of Corrections to defuse a situation that threatened the security of persons at the North Central Corrections Institute. Disclosing such security measures as ‘public record’ would expose the inmates, staff, and visitors within the correction facility as well as people outside the prison who may be implicated in the investigation to threats of violence and retaliation.” The Board posits that “[u]nder the second prong of the PETA test, [it] exercised ‘reasonable judgment’ in determining that disclosure of the record is ‘likely to jeopardize public safety.’ The very nature of Classification Reports are security measures to ensure the safety of staff, inmates, and the public. Revealing the requested information to an inmate as a ‘public record’ would pose a threat to public safety and undermine the goals of the Department of Corrections to minimize violence in corrections facilities and protect public safety. Here the requester is a convicted murderer, who is requesting only the names of fellow inmates who may or may not have been involved in a plot to murder the requester. The provisions of G.L. c. 66, § 10 (c), allow the Parole Board to deny information to a requester they reasonably believe to have nefarious intentions. Revealing the names of these inmates would not further public policy goals of ensuring transparency or good governance or holding public officials accountable. Considering that Mr. Nadworny is currently an inmate serving a life sentence for murder, and he is only seeking the names of inmates who made threats against him in his public records request, it is likely that Mr. Nadworny is seeking the names of his unknown enemies for nefarious reasons. It is therefore the reasonable judgment of the Parole Board that releasing such information as a public record would jeopardize public safety.” In camera inspection In order to facilitate a determination as to the public nature of the redacted portions of the records, it is necessary to inspect an un-redacted copy of the records in question. 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

Stacy Book SPR21/1601 Page 8 July 13, 2021 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 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. Order Accordingly, the Board is ordered to provide this office with un-redacted copies of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Stacy Book Charles Walsh, Esq.