Steven L. Smith v. Barnstable County Sheriff's Office (SPR 20212544)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records October 13, 2021 SPR21/2544 Donna Buckley, Esq. General Counsel Office of the Sheriff, Barnstable County 600 Sheriff’s Place Bourne, MA 02532 Dear Attorney Buckley: I have received the petition of Steven L. Smith appealing the response of the Barnstable County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 18, 2021, Mr. Smith requested the following: 1) The Trinity staff menu. 2) The Trinity price per meal both staff and inmate – being currently used. 3) A copy of a PREA investigation report involving a complaint [Mr. Smith] made against [a named individual] . . . 4) A copy of all [Mr. Smith’s] grievances filed against staff since [his] arrival on/about 7-5-2018. Previous Appeal This request was the subject of a previous appeal. See SPR21/2346 Supervisor of Records Determination (September 23, 2021). In my September 23rd determination, I closed SPR21/2346 in light of the Office providing a written response to Mr. Smith on September 22, 2021. Unsatisfied with the Office’s response, Mr. Smith appealed, and this case was opened as a result. Status 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 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

Donna Buckley, Esq. SPR21/2544 Page 2 October 13, 2021 (1976). Accordingly, Mr. Smith’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 or municipality 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 Office’s September 22nd Response In its September 22, 2021 response, the Office states that it previously provided certain records, that it does not possess certain others, and that it is withholding other records pursuant to Exemptions (a) and (c) of the Public Records Law. 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). 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.”

Donna Buckley, Esq. SPR21/2544 Page 3 October 13, 2021 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. PREA The Prison Rape Elimination Act (PREA) National Standards are contained at 28 C.F.R. § 115, and provide in pertinent parts: The agency shall provide multiple internal ways for inmates to privately report sexual abuse and sexual harassment, retaliation by other inmates or staff for reporting sexual abuse and sexual harassment, and staff neglect or violation of responsibilities that may have contributed to such incidents. 28 C.F.R. § 115.51(a). Before making aggregated sexual abuse data publicly available, the agency shall remove all personal identifiers. 28 C.F.R. § 115.89(c). Agency means the unit of a State, local, corporate, or nonprofit authority, or of the Department of Justice, with direct responsibility for the operation of any facility that confines inmates, detainees, or residents, including the implementation of policy as set by the governing, corporate, or nonprofit authority. 28 C.F.R. § 115.5. With regard to item 3 of Mr. Smith’s request, the Office states the following: PREA reports and records are exempt from disclosure under the PREA regulation 115.89 and would be withheld as public records pursuant to G. L. c. 4, § 7, Twenty-sixth (a). Since [Mr. Smith is] making a request for information concerning a complaint made by [him]self, [his] request would be addressed in accordance with PREA regulations set forth in Barnstable County Sheriff’s Office Policy and Procedure 300.02. This policy provides that the inmate will be “informed as to whether the allegation has been determined to be substantiated, unsubstantiated, or unfounded.” The inmate is not provided with a copy of the report. Where the records sought in item 3 of Mr. Smith’s request appear to be the type contemplated under the PREA National Standards, I find the Office has met its burden to

Donna Buckley, Esq. SPR21/2544 Page 4 October 13, 2021 withhold those records pursuant to Exemption (a) of the Public Records Law and 28 C.F.R. § 115. CORI The current definition of CORI is as follows: “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. With regard to item 4 of the request, the Office states the following: [I]nmate grievances are incarceration records and as such are considered Criminal Offender Record Information under the said definition in G.L. Ch. 6 Section 167. They are exempt from disclosure pursuant to G.L. Ch. 6 Section 167 A(h). These records would be withheld as public records pursuant to G. L. c. 4, § 7, Twenty-sixth (a) and (c). The fact that [Mr. Smith is] the one making the public records request does not transform the documents into public records. However, [his] request for copies of [his] own grievances can be handled pursuant to Barnstable County Sheriff’s Office Policy and Procedure. Policy 510.02 provides that all grievances are returned to and become the property of the inmate upon conclusion of the process. [Mr. Smith] may request through the unit manager copies of any grievances [he] may be missing.

Donna Buckley, Esq. SPR21/2544 Page 5 October 13, 2021 It is unclear whether records responsive to item 4 constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. The Office must clarify this. Exemption (c) Exemption (c) applies to: 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 may be exempt from disclosure. Brogan v. School Comm. of Westport, 401 Mass. 306,308 (1987); Globe Newspaper Co., 388 Mass. at 438. Generally, medical information is sufficiently personal to warrant exemption. Globe Newspaper Co., 338 Mass. 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 Med. Examiner, 404 Mass. 132, 135 (1987). 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. Attorney Gen., 391 Mass. 1, 9 (1984); Attorney Gen. v. Assistant Comm’r of Real Property Dep't., 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. 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). When analyzing a privacy claim, there is 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. Based on the Office’s response, it is unclear how the records responsive to item 4 are intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. See PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test which examines

Donna Buckley, Esq. SPR21/2544 Page 6 October 13, 2021 whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Office must clarify these matters. Records in Existence With regard to items 1 and 2 of the request, please be advised that 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). With regard to items 1 and 2, the Office states that “the entire Trinity Contract, including the pricing and the menus, was previously provided to [Mr. Smith] in hand on July 30, 2021 in response to an earlier request. The Barnstable County Sheriff’s Office does not maintain copies of the staff menus and does not have any other documents that would be responsive to [the] request.” Where the Office has confirmed that it has no additional responsive records, I find the Office has met its burden to respond to items 1 and 2 of the request. Conclusion Accordingly, the Office is ordered to provide Mr. Smith 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, .I-.· - . , , .-· ·.. ~ Rebecca S. Murray Supervisor of Records cc: Steven L. Smith