Darius Gibson v. Department of Correction (SPR 20240439)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 23, 2024 SPR24/0439 Kate Silvia Communications Director Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Darius Gibson 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 January 1, 2024, Mr. Gibson requested the following: [1.] All documentation in inmate management system showing names of correctional officers and dates my tattoo history was searched [2.] All documentation showing I got legal mail on 1/19/23 [3.] Documentation as to the number of [complaints] that have been made about IPS officers stealing stamps at NCII Garden for the following years 2021, 2022, 2023. The Department provided a response on January 18, 2024. Unsatisfied with the Department’s response, Mr. Gibson petitioned this office and this appeal, SPR24/0439, 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 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 SPR24/0439 Page 2 February 23, 2024 order to withhold a requested record. G. L. c. 66, § 10(d)(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…”); 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). 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 January 18th Response In its January 18, 2024 response, the Department provided records responsive to request 2 and stated, “there are no records responsive” to request 3. Regarding request 1, the Department cited Exemption (b) of the Public Records Law to withhold responsive records. Current Appeal In his appeal, Mr. Gibson states, “I have a lawsuit where I’m trying to prove defendants lied. A[n] officer found my tattoos is claimed prior to this another officer noticed the tattoos and stated if those were not documented in inmate management system he would issue disciplinary report.” Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Retirement Bd., 388 Mass. 427, 432 (1983) ------------------------------------ (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins,

Kate Silvia SPR24/0439 Page 3 February 23, 2024 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Department states, “[request 1] is exempt from disclosure pursuant to [Exemption (b)]… One of the DOC’s primary functions is to maintain secure penal institutions. Information regarding certain procedures used by correctional officers during law enforcement activities may be related solely to the internal working of the DOC. It is paramount to preserve the security and confidentiality of information contained within the Inmate Management System.” Based on the Department’s response and Mr. Gibson’s appeal, the Department has not demonstrated that the requested records are solely related to internal personnel rule and practices of the government unit. Therefore, the Department has not met its burden to withhold the responsive records under Exemption (b). Further, it is unclear what record(s) responsive to Mr. Gibson’s request the Department is withholding from disclosure. Please be advised, to deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § 10(b)(iv); see also 950 C.M.R. 32.06(3)(c)(4). Therefore, the Department must identify the record(s) it has in its possession that it withheld under Exemption (b), as well as provide specific reasons for such withholding. It is additionally uncertain how records cannot be segregated and exempt portions provided. 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. Gibson 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. Mr. Gibson may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR24/0439 Page 4 February 23, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson