Ria Guerra-Norris v. Massachusetts Parole Board (SPR 20211812)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 4, 2021 SPR21/1812 Charles Walsh, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Walsh: I have received the petition of Ria Guerra-Norris appealing the response of the Massachusetts Parole Board (Board) to her request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On May 17, 2021 Ms. Guerra-Norris requested: [1.] Notes/documentation that both [named parties] wrote about that meeting that was not included in [named individual] parole records. [2.] All email communications concerning what was discussed at this meeting. This will include communications between [named parties], as well as other parties that they disclosed this meeting to or that was aware that this meeting took place. [3.] A copy of surveillance footage from the time I entered the building to the time of my departure. [4.] A copy of the policy instituted by the Massachusetts Parole Board, or any other governing entity that establishes protocols concerning meetings initiated by state officials affiliated with the Massachusetts Parole system and family members of parolees. Previous appeal This request was the subject of a previous appeal. See SPR21/1563 Determination of the Supervisor of Records (July 7, 2021). The Board responded on July 16, 2021. Unsatisfied with the response, Ms. Guerra-Norris appealed and SPR21/1812 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

Charles Walsh, Esq. SPR21/1812 Page 2 August 4, 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(d)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based…”); 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). The Department’s June 11th Response In its June 11th response, the Board stated that it had no surveillance footage as requested in the number 3 request and had no responsive documents pursuant to the number 4 request. The Board cited Exemptions (a), (c) and (f) of the Public Records Law to redact and/or withhold the requested records. In camera inspection In order to facilitate a determination as to the applicability of the Board’s claims to withhold the responsive records in their entirety, the Board must provide this office with an un-redacted copy of the responsive records for in camera inspection. After I complete my review of the documents, I will return the records to your custody and issue an opinion on the public or exempt nature of the record. See 950 C.M.R. 32.08(4). 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. Massachusetts 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. Please be aware, any cover letter submitted to accompany the relevant records may be subject to disclosure.

Charles Walsh, Esq. SPR21/1812 Page 3 August 4, 2021 Order Accordingly, the Board is ordered to provide this office with an un-redacted copy of the responsive records for in camera inspection without delay. Sincerely, Rebecca S. Murray Supervisor of Records cc: Ria Guerra-Norris