Mark Arsenault v. Department of Correction - Legal Division (SPR 20212389)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 30, 2021 SPR21/2389 Kate Silvia Primary Records Access Officer Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Mark Arsenault of the Boston Globe, 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 March 29, 2021, Mr. Rocheleau requested eight categories of records, including, “[a]ny/all reports written during 2020 by [named individual] for investigations into allegations of use of force by members of Special Response Teams, including but not limited to final versions of these reports, draft versions of these reports, preliminary versions of these reports, and any other versions of these reports.” The Department responded on September 1, 2021, including responsive records in redacted form pursuant to Exemptions (a), (b), (c), and (f) of the Public Records Law. G. L. c. 4, § 7(26)(a), (b), (c), (f). Unsatisfied with the Department’s response, Mr. Arsenault petitioned this office and this appeal, SPR21/2389, 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

Kate Silvia SPR21/2389 Page 2 September 30, 2021 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 September 1st response In its September 1, 2021 response, the Department asserts that it redacted certain information pursuant to Exemptions (a), (b), (c), and (f). 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 Department indicates that “. . . responsive records have been redacted to remove any criminal offender record information (CORI) of identifiable inmates under G.L. c. 6, § 167. . . . Access to CORI information is strictly controlled. . . .” Citing G. L. 6, § 172 (a)(4), the Department states “[a]s explained by the Supervisor of Public Records, access to records which satisfy the definition of CORI is restricted pursuant to the CORI Act as it operates through exemption (a). The responsive ... records necessarily contain CORI as they concern an identifiable individual and relate to their incarceration. Therefore, the CORI Act . . . will allow the Department to withhold the responsive ... information. Opinion of the Supervisor of Public Records, SPR0l/388; SPR0l/586.”

Kate Silvia SPR21/2389 Page 3 September 30, 2021 CORI is currently defined as: [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. Based on the Department’s response, it is unclear what information regarding identifiable inmates were redacted from the responsive records or how the information constitutes CORI. It is additionally uncertain how the redacted information constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. Therefore, I find the Department has not met its burden to withhold those portions of the responsive records under the CORI Act. Exemption (b) Exemption (b) permits the withholding of: records that are related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary government functions requires such withholding. G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Department of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act).

Kate Silvia SPR21/2389 Page 4 September 30, 2021 The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosure would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Department states, “[s]everal of the requested records contain information regarding sensitive security measures such as the types, locations, placement and numbers of camera equipment utilized by the Department. Release of the requested records would undermine the safety and security of SBCC, a maximum security correctional facility, which would prejudice the possibility of effective law enforcement.” To the extent the disclosure of these portions would interfere with the proper performance of necessary government functions, the Department may permissibly withhold those portions from disclosure under Exemption (b). 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). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Medical Examiner, 404 Mass. 132, 135 (1987). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v.

Kate Silvia SPR21/2389 Page 5 September 30, 2021 School Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Finance, Suffolk Sup. No. 11-01184-A (June 14, 2013). 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 Department states “[t]he responsive documents also contain medical information, which is exempt from disclosure pursuant to G.L. c. 4, §7 (26) (c). . . . Pursuant to G.L. c. 66A, § 1, medical/mental health records may only be inspected by the patient to whom they relate. The exemption applies even where the inmate is deceased; after a Patient’s death, the records may only be accessed by ‘the duly appointed executor or administrator of the deceased person’s estate or the attorney for such executor or administrator upon delivery of a written authorization from such executor or administrator.’ G.L. c, 111, § 70.” Additionally, the Department indicates “. . . the responsive documents also contain personal data and personnel information, which have been redacted, as such information is also exempt from disclosure under the public records law. . . .” To the extent the records contain medical information regarding an identifiable individual, the Department may permissibly withhold such information from disclosure. However, it is unclear from the Department’s response, what information constituting personal data or personnel information was redacted from the responsive records. It is additionally uncertain how this information constitutes intimate details of a highly personal nature or how

Kate Silvia SPR21/2389 Page 6 September 30, 2021 disclosure of the information would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the information is available from other sources. See PETA, 477 Mass. at 292. Further, the Department’s response does not address the balancing test outlined in PETA. Id at 291. The Department must clarify these matters. 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. Based on the Department’s response, it is unclear what information was redacted from the responsive records or how the information constitutes investigatory materials. The Department did not demonstrate how disclosure of the redacted information would compromise any ongoing or future investigative efforts or “probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest” as required under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Mr. Arsenault with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) 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.

Kate Silvia SPR21/2389 Page 7 September 30, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Mark Arsenault