Andrew Quemere v. Department of Correction (SPR 20231427)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 7, 2023 SPR23/1427 Kate Silvia Director of Communications Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Andrew Quemere appealing the response of the Department of Correction (Department) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On April 14, 2023, Mr. Quemere requested: [1] All records related to alleged disciplinary infractions by [an identified individual], who is currently serving a sentence of life with the possibility of parole in Department of Correction custody…. [2] All records related to incidents during which force was used on [an identified individual] by DOC staff…. Previous Appeal This request was the subject of a previous appeal. See SPR23/0644 Determination of the Supervisor of Records (April 18, 2023). In my April 18th determination, I ordered the Department to provide Mr. Quemere with a response to his request. On June 12, 2023, the Department responded and stated it was withholding the requested records pursuant to the Criminal Offender Record Information (CORI) Act. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR23/1427, 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 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 SPR23/1427 Page 2 July 7, 2023 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department’s June 12th Response In its June 12, 2023 response, the Department cited CORI as it operates through Exemption (a) 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, 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.

Kate Silvia SPR23/1427 Page 3 July 7, 2023 In its response, the Department states: Please be advised that there are ten (10) disciplinary reports and one (1) use of force report involving [an identified individual]. However, the information that you seek constitutes criminal offender record information (CORI), as defined by G.L. c. 6, § 167, not public record information. CORI is exempt from disclosure under the public records statute pursuant to G.L. c. 4, § 7 (26) (a) as the records that are “specifically or by necessary implication exempted to disclosure by statute[”]. CORI is defined as “records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to…incarceration, rehabilitation, or release.” Access to CORI information is strictly controlled. As disciplinary reports and use of force reports relate specifically to an identifiable individual’s incarceration history, they are being withheld under the exemption cited above. 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.

Kate Silvia SPR23/1427 Page 4 July 7, 2023 G. L. c. 6, § 167. Current Appeal In his appeal, Mr. Quemere asserts: The department is using the CORI statute in an overly broad manner. This statute does not allow for the withholding of all records related to an “identifiable individual’s incarceration history,” as the department argues. The department has failed to explain with specificity how the CORI statute applied to the responsive records. The Department has not met its burden of specificity to show that the records fall within the definition of CORI. Specifically, the Department has not demonstrated that the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Therefore, the Department may not withhold the records in their entirety pursuant to Exemption (a). 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). Conclusion Accordingly, the Department is ordered to provide Mr. Quemere 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, Manza Arthur Supervisor of Records cc: Andrew Quemere