Joshua Carrier v. Department of Correction (SPR 20232656)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 17, 2023 SPR23/2656 Michelle Brogna Records Clerk Department of Correction MCI Shirley 104 Harvard Road Shirley, MA 01464 Dear Ms. Brogna: I have received the petition of Joshua Carrier appealing the response of the Department of Correction (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 12, 2023, Mr. Carrier requested the following records: [1.] All emails that [an identified individual] sent to [an identified individual’s] campus about toastmasters to include club member number and club constitution from Jan 2023-present date. [2.] [An identified individual’s] posting about library and library access. From Jan 2023-present date. [3.] All postings for the month of August, September, and October. The Department responded on October 25, 2023, including responsive records with redactions for Items 1 and 2, and stated that it did not possesses any responsive records for Item 3. The Department stated that it redacted records responsive to Item 1 under Exemption (d) of the Public Records Law. G. L. c. 4, § 7(26)(d). Regarding Item 2, the Department stated that it redacted the records, because they contained personal data. Unsatisfied with the response, Mr. Carrier petitioned this office and this appeal, SPR23/2656, 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 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

Michelle Brogna SPR23/2656 Page 2 November 17, 2023 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 town 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 October 25th response In its October 25, 2023 response, for Item 1, the Department stated that redactions made were pursuant to Exemption (d) of the Public Records Law. Regarding records responsive to Item 2, the Department stated that the redactions were made, because the records contain “personal data.” Regarding Item 3, the Department stated that it did not possess any responsive records. Current Appeal In his current appeal, Mr. Carrier claims that the Department did not meet its burden to redact the responsive records for Items 1 and 2. Mr. Carrier also claims that the Department did not provide all responsive records for Item 3. Item 1 Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and

Michelle Brogna SPR23/2656 Page 3 November 17, 2023 policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the Department stated the following: Enclosed please find the records responsive to your request. Please be advised that this record has been redacted pursuant to G. L. c. 4, § 7(26)(d) “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based.” This exemption “protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete” which applies here. Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Based on the Department’s response, I find it has not met its burden of specificity to redact the responsive records under Exemption (d). It is unclear from the Department’s response what information has been redacted from the responsive records. Also, I find the Department has not established how the records at issue are “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); City of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). In addition, the Department has not demonstrated that a deliberative process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Neither has the Department provided supporting information to establish that disclosure of the redacted portions will taint the ongoing deliberative process, if any. The Department must clarify these matters. Item 2 Regarding Item 2 the Department stated that “. . . the responsive documents also contain personal data and personnel information, which have been redacted, as such information is also exempt from disclosure under the public records law.”

Michelle Brogna SPR23/2656 Page 4 November 17, 2023 The Department provided redacted records for Item 2 but did not cite an exemption for the redactions. Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. It is unclear which exemption under the Public Records Law applies to the records. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department must clarify this. Item 3 Regarding Item 3, the Department stated that “[t]here were no toastmasters postings.” In his appeal, Mr. Carrier claims that he was not seeking just toastmasters’ postings but all postings for the months of August, September, and October. Based on the Department’s response, in conjunction with Mr. Carrier’s appeal, it is unclear if the Department possesses any records responsive to Item 3 of the request. Specifically, the Department must clarify whether it possesses any records regarding “postings for the month of August, September, and October”. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Accordingly, the Department is ordered to provide Mr. Carrier 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 the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Joshua Carrier Kate Silvia Jenna Williams