Juan & Grace Tamayo v. Office of the Secretary of the Commonwealth - Administrative Services Division (SPR 20230975)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 23, 2023 SPR23/0975 Valerie Connolly Records Access Officer Secretary of the Commonwealth Administrative Services Division One Ashburton Place, Room 1710 Boston, MA 02108 Dear Ms. Connolly: I have received the petition of Juan and Grace Tamayo appealing the response of the Administrative Services Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 2, 2023, Mr. and Mrs. Tamayo requested a named person’s prison “... records extant of this executive council recommendation, or perhaps even the council's deliberations, any witnesses that came before it, etc.” dating back to a pardon by Governor Calvin Coolidge. The Division responded on May 2, 2023. Unsatisfied with the response, Mr. and Mrs. Tamayo petitioned this office and SPR23/0975, 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 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

Valerie Connolly SPR23/0975 Page 2 May 23, 2023 The Division’s May 2nd response In its May 2, 2023 response, the Division asserted Exemptions (a) and (c) to withhold the records in their entirety. Current appeal In their appeal, Mr. and Mrs. Tamayo assert they are “appealing the restriction on access to the documents mentioned below, because: 1. The restrictions are clearly unfair to a family that deserves to know the full story, not just the negative facts[;] 2. These events happened more than 100 years ago, and everyone involved is no doubt deceased. So the concern over privacy applies to whom? 3. I was told these types of records were public for 10 years after they were created, and then were sealed ...” 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.

Valerie Connolly SPR23/0975 Page 3 May 23, 2023 In its response, the Division cited G. L. c. 127, § 154 which states, in pertinent part, as follows: A copy of such statement, as well as a statement of the majority recommendation of the board, signed by all members concurring, and a certified copy of the petition with all statements and signatures appended thereto, shall be retained by the board as a permanent record open to public inspection at any reasonable time for a period of ten years from the date the original petition was filed with the board. G. L. c. 127, § 154. In its response, the Division asserted, “[i]n this case, MGL Chapter 127 § 154 specifically notes that the records created by the Parole Board acting as the Advisory Board of Pardons are considered permanent records ‘open to public inspection at any reasonable time for a period of ten years from the date the original petition was filed with the board’ (See also the Petition for Pardon form available online through the Massachusetts Parole Board which specifically notes that petitions for executive clemency will be public records only for ten years from the date of filing.).” Based upon the Division’s response, and as the records are available for only ten years from disclosure by the Legislature under G. L. c. 127, § 154 as it operates through Exemption (a), I find the Division has met its burden in responding to this records request under the Public Records Law. See G. L. c. 127, § 154 (providing that these records “shall be retained by the board as a permanent record open to public inspection at any reasonable time for a period of ten years from the date the original petition was filed with the board”). Conclusion Given that these records are older than the statutorily prescribed ten years, they are no longer open for public inspection. Accordingly, I will now consider this administrative appeal closed. If Mr. and Mrs. Tamayo are 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: Juan and Grace Tamayo