Paul Revells v. Sex Offender Registry Board (SPR 20233044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 3, 2024 SPR23/3044 Mimi Wong, Esq. General Counsel Sex Offender Registry Board P. O. Box 392 Billerica, MA 01862 Dear Attorney Wong: I have received the petition Paul Revells appealing the nonresponse of the Sex Offender Registry Board (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 6, 2023, Mr. Revells requested, “[a]ll information, such as photographs, home address and employment address on [an identified individual] who is a registered sex offender.” Previous Appeal This request was the subject of a previous appeal. See SPR23/2836 Determination of the Supervisor of Records (December 6, 2023). In my December 6th determination, I closed SPR23/2836 in light of the Board providing Mr. Revells with a supplemental response on November 27, 2023. The Board provided an additional response to Mr. Revels on December 7, 2023. Unsatisfied with the Board’s responses, Mr. Revells further appealed, and this case was opened as a result. Subsequent to the opening of this appeal, the Board provided a further response on December 20, 2023. 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 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

Mimi Wong, Esq. SPR23/3044 Page 2 January 3, 2024 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 Board’s Responses In its December 7, 2023 response, the Board provides Mr. Revels with information on the classification level, number of convictions, jurisdiction, and adjudication dates for a named individual. In its November 27, and December 20, 2023 responses, the Board cites Exemption (a) of the Public Records Law, and G. L. c. 6, §§ 178D, 178I, 178J for withholding additional information. See G. L. c. 4, § 7(26)(a). 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.

Mimi Wong, Esq. SPR23/3044 Page 3 January 3, 2024 In its responses, the Board cites G. L. c. 6, § 178I, which provides in pertinent part as follows: Any person who is 18 years of age or older and who states that he is requesting sex offender registry information for his own protection or for the protection of a child under the age of 18 or another person for whom the requesting person has responsibility, care or custody shall receive at no cost from the board a report to the extent available pursuant to sections 178C to 178P, inclusive, which indicates whether an individual identified by name, date of birth or sufficient personal identifying characteristics is a sex offender with an obligation to register pursuant to this chapter, the offenses for which he was convicted or adjudicated and the dates of such convictions or adjudications. Any records of inquiry shall be kept confidential, except that the records may be disseminated to assist or defend in a criminal prosecution G. L. c. 6, § 178I. In its December 20th response, under c. 6, § 178I, the Board argues the following: Pursuant to M.G.L. c. 6, § 178I, the Board is only able to provide information regarding whether an individual has an obligation to register as a sex offender, the offenses for which they were convicted or adjudicated and the dates of such convictions or adjudications if the offender is finally classified as a Level 2 or Level 3 sex offender. The Board also cites G. L. c. 6, § 178D, which provides, among other things, in pertinent part, as follows: Notwithstanding sections 178C to 178P, inclusive, or any other general or special law to the contrary and in addition to any responsibility otherwise imposed upon the board, the board shall make the sex offender information contained in the sex offender registry, delineated below in subsections (i) to (viii), inclusive, available for inspection by the general public in the form of a comprehensive database published on the internet, known as the “sex offender internet database”; provided, however, that no registration data relating to a sex offender given a level 1 designation by the board under section 178K shall be published in the sex offender internet database but may be disseminated by the board as otherwise permitted by said sections 178C to 178P, inclusive; and provided further, that the board shall keep confidential and shall not publish in the sex offender internet database any information relating to requests for registration data under sections 178I and 178J: (i) the name of the sex offender; (ii) the offender’s home address and any secondary addresses; (iii) the offender’s work address; (iv) the offense for which the offender was convicted or adjudicated and the

Mimi Wong, Esq. SPR23/3044 Page 4 January 3, 2024 date of the conviction or adjudication; (v) the sex offender’s age, sex, race, height, weight, eye and hair color; (vi) a photograph of the sex offender, if available; (vii) whether the sex offender has been designated a sexually violent predator; and (viii) whether the offender is in compliance with the registration obligations of sections 178C to 178P, inclusive. G. L. c. 6, § 178D. In its response, the Board also cites G. L. c. 6, § 178J (establishing requirements for requesting sex offender information from a police department, and establishing penalty for misuse). In its December 20th response, under the statutes cited above, the Board argues the following: Pursuant to M.G.L. c. 6, § 178J, the local police department may provide the addresses of a finally classified Level 2 or Level 3 sex offender along with the offenses for which they were convicted and any available photographs of the sex offender. Additionally, pursuant to M.G.L. c. 6, § 178D, Mr. Revells can access SORB’s public website which has information on finally classified Level 2 after July 12, 2013 and Level 3 sex offenders which includes addresses, offenses for which the offender was convicted or adjudicated and any available photographs of the sex offender. Although G. L. c. 6, § 178I requires that the Board disclose particular information in response to inquiries, and G. L. c. 6, § 178J requires local police departments to disclose certain information, it is unclear how these statutes operate, either specifically or by necessary implication, to exempt the requested information from disclosure. Additionally, where G. L. c. 6, § 178D requires that the information Mr. Revells requested be maintained and made available to the public on a website, it is unclear how the Board may withhold such information from disclosure. The Board is also advised that under 950 C.M.R. 32.04(5)(d) “where the requester is an individual held in custody in any correctional facility, as defined in M.G.L. c. 125, § l(d), the records access officer shall presume that the requester does not have the ability to receive or access records in usable electronic form.” Conclusion Accordingly, the Board is ordered to provide Mr. Revells 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.

Mimi Wong, Esq. SPR23/3044 Page 5 January 3, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Paul Revells