Francisco Robles v. Massachusetts Parole Board (SPR 20241498)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 31, 2024 SPR24/1498 Stacy Book Records Access Officer Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of Francisco Robles appealing the response of the Massachusetts Parole Board (Board) to a request for public records. See G. L. c. 66 § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2024, Mr. Robles requested the following: [1.] Pertaining to [an identified individual’s] appeal decided; November 02, 2022: a) Names of the Board members who participated in this decision making process. b) Votes and how each of the participating Board members voted during this proceeding (in favor or against granting parole permit). [2.] Pertaining to [an identified individual’s] petition for reconsideration filed; December 23, 2022; Date of vote; January 12, 2023: a) Names of the Board members who participated in this decision making process. b) Votes and how each of the participating Board members voted during this proceeding (in favor or against granting parole permit). [3.] Pertaining to [an identified individual’s] petition for reconsideration filed; December 23, 2023; Date of vote; February 02, 2024: a) Names of the Board members who participated in this decision making process. b) Votes and how each of the participating Board members voted during this proceeding (in favor or against granting parole permit)[.] Previous Appeal This request was the subject of a previous appeal. See SPR24/1303 Determination of the Supervisor of records (May 6, 2024). In my May 6th determination, I closed SPR24/1303 in light of the Board providing Mr. Robles with a written response. The Board provided a response on 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

Stacy Book SPR24/1498 Page 2 May 31, 2024 April 16, 2024, providing the names of the Board members, and indicating it would withhold information on the nature of their votes. Unsatisfied with the Board’s response, Mr. Robles petitioned this office and this appeal, SPR24/1498, 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 order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 April 16th Response In its April 16, 2024 response, the Board indicates that it has withheld certain records pursuant to Exemption (a) of the Public Records Law. See G. L. c. 4, § 7(26)(a). The Board cited 120 C.M.R. 500.06 (2) as the basis for withholding a portion of the requested records. 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).

Stacy Book SPR24/1498 Page 3 May 31, 2024 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. In its response, the Board cites 120 C.M.R. 500.06(2), which provides in relevant part: (2) The following evaluative information shall not be disseminated pursuant to M.G.L. c. 127, § 130, c. 4, § 7(26), and c. 66A: (a) information which would pose a direct and articulable threat to the safety of an individual; (b) information which would pose a direct and articulable threat to the security of a correctional facility; (c) information deemed confidential by the Parole Board; (d) documents or working papers of the deliberative process of the hearing panel. 120 C.M.R. 500.06(2). In its response, the Board asserts that “120 CMR 500.06 prohibits [the Board] from disseminating the nature of each Board member’s vote.” Based on the Board’s April 16th response, where the requested information is the type of record contemplated under 120 C.M.R. 500.06(2), I find that the Board has met its burden to withhold the responsive records under 120 C.M.R. 500.06(2) as it operates through Exemption (a) of the Public Records Law. Conclusion Accordingly, I will now consider this administrative appeal closed. If Mr. Robles is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10A(c) (pursuing administrative appeal does not limit availability of applicable judicial remedies).

Stacy Book SPR24/1498 Page 4 May 31, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Francisco Robles