Darius Gibson v. Department of Correction (SPR 20241738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 25, 2024 SPR24/1738 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 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 May 23, 2024, Mr. Gibson requested: [1] Documentation as to the number of inmate confidential informants there are for the year 2024 at the following facilities: SBCC, Norfolk, OCCC[; and] [2] All documentation as to how inmates can become confidential informants. The Department provided a response on May 31, 2024. Unsatisfied with the Department’s response, Mr. Gibson petitioned this office and this appeal, SPR24/1738, 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. 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 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 SPR24/1738 Page 2 June 25, 2024 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 May 31st response In its May 31, 2024 response, with respect to Request 1, the Department asserted Exemptions (b), (f) and (n) of the Public Records Law to withhold the responsive records. With respect to Request 2, the Department asserted Exemptions (b) and (f) of the Public Records Law to withhold a record. Current Appeal In his appeal, Mr. Gibson stated, “I am appealing these responses from the [Department]. I'm currently writing an autobiography detailing my time inside the [Department] the first question is for statistical purpose and the second question is basic public knowledge.” 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 government 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 Ret. 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, 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

Kate Silvia SPR24/1738 Page 3 June 25, 2024 a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk of 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). For Exemption (b) to apply in Massachusetts, a records custodian must demonstrate not only that the records relate solely to the internal personnel practices of the government entity, but also that proper performance of necessary government functions will be inhibited by disclosure. Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest. G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by case consideration” of whether disclosure ‘would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-290. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public

Kate Silvia SPR24/1738 Page 4 June 25, 2024 records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. Request 1 In its response, under Exemption (b) with respect to Request 1, the Department asserted: Massachusetts General Laws c. 4, section 7(26)(b) exempts records “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 the proper performance of necessary governmental function require withholding.”… Release of the requested information would likely jeopardize institutional security of both staff and the incarcerated individuals housed within the facilities. The Department states that it withheld the responsive records due to the potential to jeopardize the institutional security of both staff and incarcerated individuals. However, the Department did not provide supporting information to demonstrate how disclosure of this information would hinder the proper performance of the Department’s necessary government function. The Department must clarify this matter. Under Exemption (f), the Department stated, “Public records law also exempts investigatory materials necessarily compiled out of the public view by law enforcement or other

Kate Silvia SPR24/1738 Page 5 June 25, 2024 investigatory officials the disclosure of which materials would prejudice the possibility of effective law enforcement …. Release of the requested information would likely jeopardize institutional security of both staff and the incarcerated individuals housed within the facilities.” It is unclear whether the Department has an open investigation regarding the requested information, and it is further unclear how this statistical information can be withheld under Exemption (f). It is additionally uncertain from the Department’s response whether the requested statistical information constitutes confidential investigative techniques that would prejudice the possibility of effective law enforcement if disclosed. The Department did not provide any supporting information to demonstrate how disclosure of the responsive information “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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). The Department must clarify these matters. Under Exemption (n), the Department argues “[r]elease of the requested information would likely jeopardize institutional security of both staff and the incarcerated individuals housed within the facilities.” Based on the Department’s May 31st response, I find that the Department has not met its burden to withhold the requested information under Exemption (n) of the Public Records Law. Specifically, the Department has not demonstrated how the requested information resemble the records listed as examples in the statute. See PETA, 477 Mass. at 289. Particularly, the Department has not demonstrated how information such as documentation of the number of inmate confidential informants in 2024 resembles “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. Further, the Department has not demonstrated how such records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). In this case, the Department did not provide sufficient factual heft to support withholding of the requested records pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how the disclosure of the requested information is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters. Request 2 In its response, under Exemption (b), the Department asserts, “[p]lease be advised that the policy that is responsive to your request is 103 DOC 518, Inner Perimeter Security Team (IPS), which is not a public policy. It is being withheld in its entirety as exempt under public records law. This document is exempt from disclosure pursuant to G.L. c. 4, section 7 (26)(b)...”

Kate Silvia SPR24/1738 Page 6 June 25, 2024 In this case, the Department has not demonstrated that the requested record is solely related to internal personnel rules and practices of the government unit. Additionally, the Department has not explained whether such record is predominantly used internally, and it is unclear how such record would significantly risk circumvention of agency regulations and statutes. Therefore, the Department has not met its burden to withhold the responsive record, in its entirety, under Exemption (b). Under Exemption (f), the Department indicates, “103 DOC 518 is also exempt from disclosure pursuant to G. L. c. 4, § 7 (26)(f) . . .” Based on the Department’s response, it is unclear how the record, in its entirety, can be withheld under Exemption (f). It is additionally uncertain from the Department’s response whether the record contain confidential investigative techniques. The Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). See Reinstein, 378 Mass. at 289-90 (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). The Department must clarify these matters. 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 the response to this office at pre@sec.state.ma.us. Mr. Gibson may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson