Andrew Quemere v. Department of Correction (SPR 20232267)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 6, 2023 SPR23/2267 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 Appeals This request was the subject of previous appeals. See SPR23/0644 Determination of the Supervisor of Records (April 18, 2023) and SPR23/1427 Determination of the Supervisor of Records (July 7, 2023). In my July 7th determination, I ordered the Department to provide Mr. Quemere with a response to his request. On September 23, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR23/2267, 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 SPR23/2267 Page 2 October 6, 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 September 23rd Response In its September 23, 2023 response, the Department states: Your overly narrow interpretation of the statute all but renders the CORI statute meaningless. In your July 7, 2023 decision, you wrote that DOC may not withhold an inmate’s disciplinary records because one sentence in the CORI definition in M.G.L. c. 6, § 167 states: “such information shall be restricted to information recorded in criminal proceedings.” (emphasis added). By this interpretation, no records other than those directly a part of a criminal proceeding (presumably an arraignment, bail hearing, or other pre-trial motion) are CORI. . . . The intent of the CORI statute is to control and limit the dissemination of personal information regarding inmates and others with criminal records for privacy reasons. A commonsense reading of the definition supports the Commonwealth’s position. . . . [T]he definition, in relevant part, states that CORI consists of records and data that “concern an identifiable individual” and “relate to”, among other items, “…sentencing, incarceration, rehabilitation, or release.” The language specifically states that CORI data relates to the “nature or disposition of a criminal charge,” including “sentencing, incarceration, rehabilitation, and release.” Clearly, the sentence you cite to support your rejection of the Department’s position on the requested records, namely “information recorded in criminal proceedings that are not dismissed before arraignment,” must be read in conjunction with the rest of the paragraph. In other words, in cases where a party is accused of a crime but the charges are dismissed before arraignment—the very beginning of the criminal process—that criminal information is not CORI. Information about the aftermath of criminal proceedings, including the individual’s incarceration, is CORI. To read it otherwise renders the rest of the definition irrelevant.

Kate Silvia SPR23/2267 Page 3 October 6, 2023 Pursuant to your office’s interpretation, almost all records pertaining to a person’s incarceration would be public records, which is clearly counter to the Legislature’s intent in creating CORI protections for incarcerated individuals. The last sentence of the definition confirms this view. It states that CORI “shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable….” (emphasis added). Where the statute specifically excludes from CORI information where the inmate cannot be identified, it logically means that information where the individual can be identified is CORI-protected. The Legislature, in passing the statute, decided that access to CORI information would be strictly controlled. For example, the statute states: [c]riminal justice agencies may obtain all criminal offender record information, including sealed records, for the actual performance of their criminal justice duties. Licensing authorities … may obtain all criminal offender record information, including sealed records, for the purpose of firearms licensing….The criminal record review board may obtain all criminal offender record information, including sealed records, for the actual performance of its duties. G.L. c. 6, § 172(a)(1). … As the responsive records contain CORI of identifiable incarcerated individuals as defined in G.L. c. 6, § 167, pursuant to G.L. c. 4, § 7(26)(a), CORI is exempt from disclosure under the public records statute as records that are specifically or by necessary implication exempted to disclosure by statute.” . . . The Department, as a criminal justice agency, has a duty and an obligation to withhold CORI from non-authorized individuals…. Because requester Andrew Quemere does not fall within the scope of § 172 (a)(1- 3), G.L. [c.] 6, 172 (a)(4) applies. . . . Also, although the purpose of the requester in seeking the records is immaterial to the exemption analysis, courts must bear in mind that “[e]ven if the [requester] asserts that it will neither publish the requested indices nor use them for commercial or malicious ends, a different requester might use the information differently. If the requested indices are available as a matter of law to the Globe, then they must be available to everyone.” Boston Globe Media Partners, LLC v. Department of Pub. Health, 482 Mass. 427, 439 (2019). Further, [Exemption (c)] contains two distinct and independent clauses, each requiring its own analysis. Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432-34 (1983). Analysis under the second privacy clause is subjective, requiring a balancing of the public’s right to know against the relevant privacy

Kate Silvia SPR23/2267 Page 4 October 6, 2023 interests at stake. Attorney General v. Real Prop. Dept., 380 Mass. 623, 625 (1980); Torres v. Attorney General, 391 Mass. 1, 9 (1984). The privacy clause of exemption (c) specifically protects “intimate details of a highly personal nature.” Attorney General v. Real Prop. Dept., 380 Mass. 623, 625 (1980). A record that invades privacy is deemed public only if “the public interest in obtaining the information substantially outweighs the seriousness of any invasion of privacy.” Champa v. Weston Public Schools, et al, 473 Mass. 86, 96 (2015), quoting Collector of Lynn, 377 Mass. at 156 (emphasis added); see also Hastings & Sons Pub. Co. v. City Treasurer of Lynn, 374 Mass. 812 (1978); Peckham v. Boston Herald, Inc., 48 Mass. App. Ct. 282, 286 n.6 (1999). Determinations must be made on a case by base basis. Finally, given the breadth of Mr. Quemere’s request, it must be noted that, to the extent use of force or other reports contain medical information, General Laws c. 4, § 7(26)(c), exempts “personnel and medical files or information” from the definition of public record. The Department stands by its determination that the information requested by Mr. Quemere is not public information and is protected by the CORI statute. Therefore, in accordance with its obligations under the CORI statute, the Department cannot comply with his request. Current Appeal In his appeal, Mr. Quemere argues: The department’s interpretation of the CORI statute is overly broad and it is not clear that all responsive records are entirely exempt. The department also asserts “that, to the extent use of force or other reports contain medical information,” the records are exempt under exemption (c). However, it is unclear which records contain medical information or why these records cannot be provided in redacted form. 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

Kate Silvia SPR23/2267 Page 5 October 6, 2023 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. Criminal Offender Record Information 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. G. L. c. 6, § 167. 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

Kate Silvia SPR23/2267 Page 6 October 6, 2023 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). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Medical information that is of a personal nature and relates to a specifically named individual is exempt from disclosure. Brogan v. Sch. Comm. of Westport, 401 Mass. 306, 308 (1987); Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 438 (1983). Generally, medical information is sufficiently personal to warrant exemption. Id. at 432-34. There is a strong public policy in Massachusetts that favors confidentiality as to medical data about a person’s body. Globe Newspaper Co. v. Chief Med. Exam’r, 404 Mass. 132, 135 (1987). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption requires a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. There are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). The types of personal information which this exemption is designed to protect includes: marital status, paternity, substance abuse, government assistance, family disputes and reputation. Id. at 292 n.13; see also Doe v. Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 427 (1988)

Kate Silvia SPR23/2267 Page 7 October 6, 2023 (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). The Department has not met its burden to withhold the responsive records pursuant to Exemption (c). Although the Department states that “it must be noted that, to the extent use of force or other reports contain medical information, General Laws c. 4, § 7(26)(c), exempts ‘personnel and medical files or information’ from the definition of public record[,]” it is unclear from the Department’s response what responsive records contain medical information. If the responsive records that contain medical information are records related to a law enforcement misconduct investigation, it is uncertain how the records can be withheld or redacted pursuant to Exemption (c), which states that “this subclause shall not apply to records related to a law enforcement misconduct investigation[.]” The Department must clarify these matters. 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