Jamie Folk v. Attorney General's Office (SPR 20230945)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 19, 2023 SPR23/0945 Lorraine A.G. Tarrow, Esq. Assistant Attorney General Records Access Officer Office of the Attorney General One Ashburton Place, 20th Floor Boston, MA 02108 Dear Attorney Tarrow: I have received the petition of James Folk, of Rodenfolk Productions, appealing the response of the Office of the Attorney General (AGO) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 22, 2023, Mr. Folk requested, “[a]ll emails, records and audio and video recordings associated with the criminal referrals proposed by the Inspector General's office in their investigation of the Hinton and Amherst Drug testing labs. This would be from 2012 to 2018.” Previous appeal This request was the subject of a previous appeal. See SPR23/0791 Determination of the Supervisor of Records (May 9, 2023). The AGO responded on May 8, 2023. Unsatisfied with the response, Mr. Folk petitioned this office and this appeal, SPR23/0945, 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 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 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

Lorraine A.G. Tarrow, Esq. SPR23/0945 Page 2 May 19, 2023 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 AGO’s May 8th response In its May 8, 2023 response, the AGO claimed Exemption (a) of the Public Records Law to withhold the requested records in their entirety. Current appeal In his appeal, Mr. Folk opines that the information he is “seeking has already been made public” in various news outlets. 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 AGO asserted, the statute, G. L. c. 12A, §§ 10, 13, which states in pertinent part as follows: All records of the office of inspector general shall be confidential unless, it is necessary for the inspector general to make such records public in the performance of his duties, and shall not be public records as defined in section seven of chapter four. Violation of the provisions of section nine and section ten

Lorraine A.G. Tarrow, Esq. SPR23/0945 Page 3 May 19, 2023 relative to the secrecy of proceedings by the inspector general or any member of the staff, or by any member of the inspector general council, shall be punished by imprisonment in a jail or house of correction for not more than six months or by a fine of not more than one thousand dollars. G. L. c. 12A, § 13. In its response, the AGO stated, “[o]n April 5, 2023, we responded to an identical public records request submitted by you on March 22, 2023, which you have appealed to the Supervisor in SPR23/0791. We enclose a copy of our April 5, 2023 response for your reference. We reiterate that records in the AGO’s custody that may be responsive to your request are mandatorily exempt pursuant to G.L. c. 4, § 7, cl. 26(a), as they are records and information specifically exempted from disclosure by statute, G.L. c. 12A, §§ 10, 13, which prohibit the disclosure of all records of the Office of the Inspector General (IGO), including any referrals made by the IGO to the AGO.” The AGO further addressed Mr. Folk’s assertion that the information was made public and asserted in its footnote 2 of the May 8th determination. The AGO stated, “[w]e refer you to Supreme Judicial Court docket SJC-2022-0305 in which the Court ordered the Office of the Inspector General (IGO) to provide certain records unredacted to the parties in 0481CR01176 (Middlesex Sup. Ct.). To date, the AGO has no such court order to provide confidential IGO records to the parties in that case and/or to the public.” I find the Department has met its burden in responding to this request under the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. Folk is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: James Folk