Kevin Norris v. Department of Correction - Legal Division (SPR 20212134)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 7, 2021 SPR21/2134 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Kevin Norris 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 July 8, 2021, Mr. Norris requested, among other items, the following: 1) The email/letter received from the Parole Board in April of 2021, informing the ‘DOC’ that [Mr. Norris] googled [two named individuals] while on parole supervision. 2) A copy of the CDC guideline that requires a 14 day quarantine for new inmates 3) The CDC guideline that states even after a negative COVID-19 test, an inmate must still be quarantined for 14 days. (This is a rule quoted by MTC Administrators). The Department responded on August 3, 2021, providing a number of responsive records, and claiming to withhold others pursuant to Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Mr. Norris 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 agency 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. 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

Kate M. Silvia SPR21/2134 Page 2 September 7, 2021 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 Department’s August 3rd Response In its August 3, 2021 response, the Department states that it is withholding records responsive to the first item of the request pursuant to Exemption (a) of the Public Records Law and G. L. c. 6, § 167, known as criminal offender record information (CORI). 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, 3 77 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. CORI The current definition of CORI is as follows:

Kate M. Silvia SPR21/2134 Page 3 September 7, 2021 “Criminal offender record information,” records 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 be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record 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). Possession, Custody, and Control 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). In its response to the first item of the request, the Department states “that Parole produces a Parole Violation Report. This information constitutes criminal offender record information (CORI).” The Department goes on to state that “[t]his report would need to be requested from the Parole Board.” In his appeal petition, Mr. Norris contends that “two agents from the Commissioner’s Office visited [him], and said they received an email stating that [he] googled [the named individuals].” Based on its response, the Department has not met its burden to explain how the requested record falls within the definition of CORI. Specifically, it is uncertain how these records contain “information recorded in criminal proceedings that are not dismissed before arraignment” as described in G. L. c. 6, § 167 above. Further, it is unclear whether the Department does not possess the requested record, or whether the Department possesses the

Kate M. Silvia SPR21/2134 Page 4 September 7, 2021 record and is withholding it. The Department must clarify these issues. Unclear Appeal As to the second and third items of his request, Mr. Norris explains that the Department “sent [him] something from Wellpath, not the CDC.” He contends that “since the [Department] has repeatedly quoted the CDC guidelines, they should produce them.” Based on the foregoing, it is unclear what the basis of Mr. Norris’ appeal is. Mr. Norris is advised that all petitions for appeal “shall specifically describe the nature of the requestor’s objections to the response or failure to timely respond.” 950 C.M.R. 32.08(e). In this case, the Department has provided a copy of its guidelines to Mr. Norris. Accordingly, Mr. Norris must describe his specific objections to the Office’s response. Further, 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. Att’y Gen. 157, 165 (May 18, 1977). Conclusion Accordingly, the Department is ordered to provide Mr. Norris 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 the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Kevin Norris