Laurel Kratochvila v. Department of Correction - Legal Division (SPR 20213219)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 17, 2021 SPR21/3219 Kate Silvia Records Access Officer Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Laurel Kratochvila appealing the response of the Department of Correction (Department/DOC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 1, 2021, Ms. Kratochvila requested “…the DOC state custody record” for an identified individual. Previous appeal This request was the subject of a previous appeal. See SPR21/2575 Determination of the Supervisor of Records (October 20, 2021). In my October 20th determination, I found the Department had not met its burden to withhold responsive records under Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). The Department provided a further response on October 20, 2021. Unsatisfied with the Department’s response, Ms. Kratochvila petitioned this office and this appeal, SPR21/3219, 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 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 SPR21/3219 Page 2 December 17, 2021 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 Department’s October 20th response In its October 20, 2021 response, the Department asserts “[t]he responsive records necessarily contain CORI as they concern an identifiable individual and relate to their incarceration.” The Department cites G. L. c. 6, § 167 and G. L. 6, § 172 (a)(4), to withhold the responsive records from disclosure. 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. 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

Kate Silvia SPR21/3219 Page 3 December 17, 2021 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). The Department argues, “[i]ndeed, the traditional interpretation of this statute has necessarily taken into account the [italicized] language in the definition, as follows: CORI consists of records and data compiled by DOC, a criminal justice agency, concerning an identifiable inmate, that relates to the individual’s ‘sentencing, incarceration, rehabilitation, or release.’ If such information were limited only to information recorded in criminal proceedings not dismissed before arraignment, then what information would the Department be compiling under the statute as a criminal justice agency? The information relating to an individual’s incarceration, rehabilitation or release, for example, does not even exist at the time of the individual’s criminal proceeding, but is initiated only after the individual has been in custody for a period of time. The clear interpretation of the statute then, must mean only that a criminal justice agency is not to include as CORI, charges that have been dismissed before arraignment, information concerning offenses not punishable by incarceration, and certain information pertaining to minors.” The Department further explains that “[a]ccess to CORI information is strictly controlled and limited to specific agencies for specific purposes[.] . . . Outside of law enforcement representatives, CORI access is limited. Ms. Kratochvilla, a private citizen, is not a law enforcement agency . . . , so it falls under G.L. 6, § 172 (a)(4), which states, in relevant part: Any member of the general public may upon written request to the department and in accordance with regulations established by the department obtain the following criminal offender record information on a subject: (i) convictions for any felony punishable by a term of imprisonment of 5 years or more, for 10 years following the disposition thereof, including termination of any period of incarceration or custody; (ii) information indicating custody status and placement within the correction system for an individual who has been convicted of any offense and sentenced to any term of imprisonment, and at the time of the request:

Kate Silvia SPR21/3219 Page 4 December 17, 2021 is serving a sentence of probation or incarceration, or is under the custody of the parole board; (iii) felony convictions or findings of not guilty by reason of insanity for 2 years following the disposition thereof, including any period of incarceration or custody; and (iv) misdemeanor convictions for 1 year following the disposition thereof, including any period of incarceration or custody. Therefore, pursuant to G.L. c. 4, § 7(26)(a), CORI is exempt from disclosure under the public records statute as records that are ‘specifically or by necessary implication exempted to disclosure by statute.’). . .” The Department’s response does not identify the records the Department possesses that are responsive to the request. The Department must identify the records it has in its possession, custody or control that are responsive to Ms. Kratochvila’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Also, although the Department posits that the records contain CORI, it is not clear how the records constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” Further, it is uncertain how the records can be withheld in their entirety under Exemption (a). The Department must clarify whether segregable portions can be provided. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 10(a). The Department must clarify these issues. Conclusion Accordingly, the Department is ordered to provide Ms. Kratochvila 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laurel Kratochvila