Emmett S. Muldoon v. Department of Correction (SPR 20230225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 21, 2023 SPR23/0225 Kate Silva Director of Communications Department of Correction – Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silva: I have received the petition of Emmett Muldoon, 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 January 14, 2023, Mr. Muldoon requested “[o]ne Christmas card, mailed by [named person and named address]…” On January 23, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Muldoon petitioned this office and this appeal, SPR23/0225, 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. The Department’s January 23rd response In its January 23, 2023 response, the Department stated, “Commonwealth of Massachusetts Regulation 103 CMR 481, Inmate Mail prohibits the delivery of original non- 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 Silva SPR23/0225 Page 2 February 21, 2023 privileged mail at MCI Norfolk.” The Department further stated, “…Please see 103 CMR 481.12 (c) 1 and MCI Norfolk’s procedural statement VII.C…” The Department then cited Exemption (a) as the basis to withhold the requested records. 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its response, the Department states cites the regulation, 103 C.M.R. 481.12(C)(1), which states: In the event that all incoming inmate non-privileged mail at a particular institution creates an unacceptable risk for introduction of contraband, the Commissioner may authorize that all incoming non-privileged inmate mail at that institution shall be photocopied prior to distribution to inmates, and all newly received non- privileged mail shall be deemed contraband unless otherwise provided for in this regulation. When all incoming non-privileged inmate mail at an institution is photocopied, the Superintendent shall ensure that the following directives are followed: 103 C.M.R. 481.12(C)(1).

Kate Silva SPR23/0225 Page 3 February 21, 2023 Based on the Department’s response, it is unclear how this regulation restricts access to the requested records. Specifically, the Department has not demonstrated how the cited regulation specifically or by necessary implication permits it to withhold the requested records from disclosure. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Muldoon with a response to the 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Emmett Muldoon