Darius Gibson v. Department of Correction (SPR 20241739)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 24, 2024 SPR24/1739 Kate Silvia Director of Communications Records Access Officer Department of Correction 50 Maple Street Milford, MA 01757 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 May 16, 2024, Mr. Gibson requested: [1.] All documentation as to the yearly salary amount correctional officers receive per each rank[;] [2.] All documentation as to the amount of time correctional officers have to wait to advance rank, be promoted[;] [3.] All documentation as to bonus’s [sic] correctional officers receive for being on the special response team[;] [4.] All documentation as to qualifications and requirements for the special response team[;] [5.] All documentation as to the additional training officers receive on the special response team[;] [6.] All documentation as to the handling and use of inmate confidential informants[;] [7.] All documentation as to payments inmate informants receive such as 1 time basis, yearly salary[.] The Department provided a response on May 23, 2024, which included certain records. Unsatisfied with the response, Mr. Gibson petitioned this office and this appeal, SPR24/1739, was opened as a result. In his appeal petition, Mr. Gibson explains that he is “appealing this response from the department of correction specifically [Item 6[.]” 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 SPR24/1739 Page 2 June 24, 2024 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) (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 May 23rd Response In its May 23, 2024 response, the Department states that regarding Item 6 of Mr. Gibson’s request, it is withholding the responsive records in their entirety pursuant to Exemptions (b) and (f) of the Public Records Law. The Department explains: Please 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… pursuant to G. L. c. 4, § 7(26)(b)[.] … 103 DOC 518 is also exempt from disclosure pursuant to G. L. c. 4, § 7(26)(f)[.] … For the above reasons, 103 DOC 518 is not a public record. The requested policy would raise serious security concerns if released. It describes the steps to be taken regarding investigative techniques and processes, intelligence gathering, climate monitoring, security inspections, etc. Accordingly, disclosure of this record would inhibit the Department’s successful enforcement of rules and potentially put Officers’ and other incarcerated individuals’ safety at risk as well.

Kate Silvia SPR24/1739 Page 3 June 24, 2024 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 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 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). 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). 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.

Kate Silvia SPR24/1739 Page 4 June 24, 2024 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. Although the Department claims the requested record concerns “investigative techniques and processes[,]” it is unclear how the record, in its entirety, can be withheld under Exemption (f). Consequently, the Department has not demonstrated how disclosure of any 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). Consequently, I find that the Department has not met its burden to withhold the responsive record, in its entirety, under Exemption (f) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Gibson with a response to his request 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. Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson