Michael Corbin v. Department of Correction (SPR 20241044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 22, 2024 SPR24/1044 Kate Silvia Communications Director Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silva: I have received the petition of Michael Corbin 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 February 21, 2024, Mr. Corbin requested: [1.] Documentation as to how many requests for body camera footage for disciplinary hearings have been allowed at facility SBCC[;] [2.] Documentation as to how many requests for body camera footage for disciplinary hearings have been denied at facility SBCC[;] [3.] Documentation as to how many disciplinary reports have been written by [an identified officer] during his entire career[;] [4.] Documentation as to how many disciplinary reports written by [an identified officer] have been administratively closed[; and] [5.] Documentation as to how many times [an identified officer] has been disciplined[.] The Department responded on March 11, 2024. Unsatisfied with the Department’s response, Mr. Corbin petitioned this office and this appeal, SPR24/1044, 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 SPR24/1044 Page 2 April 22, 2024 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. See 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. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Corbin’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Department’s March 11th response In its March 11, 2024 response, regarding Items 1, 2 and 4, the Department stated there were no responsive records. Regarding Item 3, the Department provided a response. Regarding Item 5, the Department stated that records were withheld pursuant to Exemption (c) of the Public Records Law. Mr. Corbin is not appealing the Department’s responses regarding Items 1, 2, 3 and 4. Current Appeal In his appeal, Mr. Corbin stated, “I am appealing this response from the [Department], specifically [Item] 5 … I’m being criminally charged and this [identified individual] is a witness.” 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

Kate Silvia SPR24/1044 Page 3 April 22, 2024 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). 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. Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). This exemption does not protect all data relating to specifically named individuals. Rather, 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) (holding that a motor vehicle licensee has a privacy interest in disclosure of his social security number). 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. In its March 11, 2024 response, the Department asserted: Dissemination of [Item 5 information] would violate G. L. c. 4, § 7 (26)(c) … [E]mployees have the right to object to the release of personnel records, including disciplinary records, pursuant to G. L. c. 66A, Section 2. Joe Doe, et al. v.

Kate Silvia SPR24/1044 Page 4 April 22, 2024 Registrar of Motor Vehicles, 26 Mass. App. Ct. 415, 428 (1988). Release of investigative findings and conclusions, even if an employee is ultimately exonerated, or where a finding is unsustained, could nevertheless lead to damage to the employee’s reputation, which would have a direct impact on the employee, if and when the employee were to pursue employment elsewhere. The employee could still be faced with the possibility that some individuals may harbor a suspicion that the investigative finding resulted from a technicality due to the insufficiency of the evidence, for example, and wrongly assume that the employee had actually engaged in some form of misconduct. Release of the findings and conclusions of these investigations could have a detrimental effect on reputations not only for employment purposes but also within the perception of the community at large. Based on the Department’s response, it is unclear how the record contains intimate details of a highly personal nature, nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is also not clear whether this information is available from other sources. PETA, 477 Mass. At 292. Further, the Department did not provide information with respect to examining whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. Id. Finally, the Department has not shown how the withheld records are not “records related to a law enforcement misconduct investigation.” See G. L. c. 4, § 7(26)(c). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Corbin with a response, 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. Mr. Corbin may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Michael Corbin