Joshua Carrier v. Department of Correction (SPR 20241759)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 26, 2024 SPR24/1759 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 Joshua Carrier 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 8, 2023, Mr. Carrier requested the following: [1.] Property Committee meeting minutes for the 2nd quarter was held between April – May 2024 [2.] All music committee meeting minutes that was conducted from Jan 2024 to present date and all document submitted in those meetings. Prior Appeal This request was the subject of a prior appeal. See SPR24/1609 Determination of the Supervisor of Records (June 4, 2024). In my June 4th determination, it was my understanding that the Department provided Mr. Carrier with a further response on May 15, 2024. Unsatisfied with the Department’s response, Mr. Carrier petitioned this office and this appeal, SPR24/1759, 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). 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 SPR24/1759 Page 2 June 26, 2024 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(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 May 30th Response In its May 30, 2024 response, the Department cited Exemption (d) of the Public Records Law to withhold records responsive to the request. Current appeal In his previous appeal, Mr. Carrier stated, “I am seeking to only address [Item 2]… In my request I ask for all documents presented at the meeting. Accordingly, there was an SOP and a ‘final version of the department order form.’ These are not included in the response for the request.” In his current appeal, Mr. Carrier stated, “I do not feel that these fall under the exemption as stated that the party ‘submitted the final version’ of the music order form. This being the final version tells it’s not exempt…” Exemption (d) Exemption (d) allows the withholding of: inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency; but this subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based G. L. c. 4, § 7(26)(d). Exemption (d) is intended to avoid premature release of materials that could taint the deliberative process if disclosed. Its application is limited to recommendations on legal and policy matters found within an ongoing deliberative process. See Babets v. Sec’y of the Exec. Office of Human Servs., 403 Mass. 230, 237 n.8 (1988). Factual reports which are reasonably complete and inferences which can be drawn from factual investigations, even if labeled as

Kate Silvia SPR24/1759 Page 3 June 26, 2024 opinions or conclusions, are not exempt as deliberative or policy making materials. G. L. c. 4, § 7(26)(d); see also Envtl. Prot. Agency v. Mink, 410 U.S. 73, 89 (1973) (purely factual matters used in the development of government policy are subject to disclosure). Under Exemption (d), the Department states, “[Mr. Carrier’s] appeal requests the order form for musical instruments and the standard operating procedure (SOP)… Please be advised that the requested records are currently in the development and review process. These records are being withheld pursuant to [Exemption (d)], which exempt[s] inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency… Once these records have been finalized and approved for dissemination, [Mr. Carrier] will receive a copy.” The Department is advised that any information contained in these records that is factual in nature may be subject to disclosure as Exemption (d) does not apply to such information. Consequently, the Department must clarify whether the records contain any factual information that can be segregated. Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. See G. L. c. 66, § l0(a); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-290 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Further, I find the Department has not established how the records at issue are “inter- agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 4 (2001) (indicating that a requirement for Freedom of Information Act (FOIA) exemption 5 to apply is “its source must be a Government agency”); Cty. of Madison v. United States Dep’t of Justice, 641 F.2d 1036, 1040 (1st Cir. 1981) (finding that documents from a private party are not “intra-agency” under FOIA exemption 5); SPR95/336 Determinations of the Supervisor of Records (August 14, 1995; August 31, 1995) (finding that Exemption (d) does not protect materials submitted to an agency by third parties and only applies to governmental agencies or consultants). It is additionally uncertain how disclosure of the records would taint the ongoing deliberative process. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Carrier with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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.

Kate Silvia SPR24/1759 Page 4 June 26, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Joshua Carrier