Ariel Sabar v. Secretary of the Commonwealth - Archives Division (SPR 20231640)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 31, 2023 SPR23/1640 Caitlin Jones Head of Reference Secretary of the Commonwealth Massachusetts Archives 220 Morrissey Boulevard Boston, MA 02125 Dear Ms. Jones: I have received the petition of Ariel Sabar, of The Atlantic, appealing the response of the Archives Division (Division) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 5, 2023, Mr. Sabar requested “Governors Council/Massachusetts Executive Council records on the commutation case file of [an identified individual].” Mr. Sabar also requested “the records of [the named individual’s] parole application materials.” The Division responded on July 11, 2023. Unsatisfied with the response, Mr. Sabar petitioned this office and SPR23/1640, 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. Att’y 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

Caitlin Jones SPR23/1640 Page 2 July 31, 2023 The Division’s July 11th Response In its July 11, 2023 response, the Division asserts: While the record book copies of the Executive Council minutes and the certified copies of the pardons and commutations granted by the Governor (previously sent) are open to the public, access to the actual pardon files is restricted. While MGL Chapter 127, § 152 designates pardon files as “public records,” the Massachusetts Public Records Law (MGL c. 66) includes provisions exempting certain public records from inspection. See, for example, MGL c. 4, § 7 (26) (a), which notes some public records are exempted from inspection by specific statute. In 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.) In addition to these specific exemptions, pardon files contain Criminal Offender Record Information (CORI), which is specifically exempted from disclosure by statute until the death of the individual, as well as documents containing medical, mental health, and evaluative information, which are likewise exempted from public disclosure by MGL c. 4, § 7 (26) (c). For these reasons, access to pardon files is not permitted. Current Appeal In his appeal, Mr. Sabar argues: First, the plan language of MGL Chapter 127, § 152 describes pardon files as “public records.” Specifically, “Every pardon petition shall, before its presentation to the governor, be filed with the parole board, acting as the advisory board of pardons, together with all statements and signatures appended thereto, and shall thereupon become a public record.” Second, MGL Chapter 127 § 154 specifically states that records created by the Parole Board acting as the Advisory Board of Pardons are considered “permanent” and “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.” The public official who denied my request was, I believe, incorrect in stating the records are public records “only” for ten years. Neither the language of MGL

Caitlin Jones SPR23/1640 Page 3 July 31, 2023 Chapter 127 § 154 not of the “Petition for Pardon” form the official cites contains the modifier “only.” Ten years is plainly a minimum. Nothing in the law indicates that the legislature intended to conceal or de-certify these materials as public records after 10 years…. Though pardon files contain Criminal Offense Record Information, the law is also clear that many of the limitations on disclosure expire after the defendant’s death…. Because of the public interest in such records, I’d ask that if any specific words or sentences within such records are deemed unreleasable, that (a) only those words or sentences be redacted, (b) the specific reasons for each of those redactions be listed beside each redaction, and (c) the rest of such records be released. Finally, the files I’m requesting include, among other things, psychiatric reports by the Massachusetts Executive Council and possibly others. [The named individual] has no immediate relatives, and the release of such reports, almost four decades after his death, can not be reasonably understood to constitute an “unwarranted invasion of personal privacy” under [Exemption (c)]. If you determine otherwise, it should still be possible to separate works [sic], sentences, or paragraph in such reports deemed “medical”—and those not subject to release—from words, sentences, and paragraphs that are not medical and thus subject to release, such as [an identified individual’s] own account of his biography, life circumstances, and the murder he was convicted of. As in the previous paragraph, I ask that all segregable content within these psychiatric reports be released. 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

Caitlin Jones SPR23/1640 Page 4 July 31, 2023 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 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. 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. Sabar 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: Ariel Sabar