Bodhisattva Skandha v. Department of Correction (SPR 20241843)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 9, 2024 SPR24/1843 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Bodhisattva Skandha 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 22, 2024, Mr. Skandha requested: [1] The name, first, last, middle initial, of all Correctional Officers which are assigned to the Kitchen at MCI-Norfolk. [2] Each and every Correctional Officers daily shift and days off, for kitchen officers. The Department responded on June 11, 2024. Unsatisfied with the Department’s response, Mr. Skandha appealed, and this case, SPR24/1843, 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. 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 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 SPR24/1843 Page 2 July 9, 2024 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 June 11th Response In its June 11, 2024 response, the Department provided responsive records for Item 1 of Mr. Skandha’s request, but withheld responsive records for Item 2 citing Exemption (b) of the Public Records Law, and claiming his request lacks clarity. See G. L. c. 4, § 7(26)(b). 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).

Kate Silvia SPR24/1843 Page 3 July 9, 2024 Reasonable Description of Records Sought A request for records must reasonably describe the records sought. See G. L. c. 66, § 10(a)(i). In Chawla, the Superior court found that under the Public Records Law “[t]he reasonable description requirement contemplates that a requesting party will identify documents or categories of documents with sufficient particularity that government employees will be able to understand exactly what they are looking for, and then make a prompt production.” See Jaideep Chawla v. Dept of Revenue, Suffolk. Sup. No. 1784CV02087, at 2 (January 23, 2019). The court further indicated “[r]equests for documents that are articulated with very broad language that calls upon non-lawyer administrative personnel to interpret the scope of what is sought, and then make fine judgments about what documents are and are not sufficiently ‘related’ to the category of materials requested, will not satisfy this statutory standard.” In its June 11th response, regarding Item 2 of the request, the Department states the following: [Y]our request lacks clarity. First, there is no time frame provided in your request. Therefore, an officer’s shift and days off during one period of time might be different than this same officer’s shift and days off during another period of time. Second, the shift and days off of Department correctional staff, including correctional staff assigned to the kitchen, is not necessarily regular and consistent from week to week. Correctional staff might assume a different shift due to a “swap”. Also, an officer might have approved leave, the details of which are often confidential, which would result in a different officer covering the shift of this officer who has been approved for said leave. Thus, given the ambiguity of your request, the Department is unable to provide an appropriate response. Based on the forgoing, I find it is unclear which specific records Mr. Skandha seeks. Mr. Skandha may wish to modify or clarify his request to the Department in order to provide the sufficient particularity needed in order to search the Department’s records. G. L. c 66, § 10(a)(i) (the request must reasonably describe the public record sought). Conclusion Accordingly, I will consider this administrative appeal closed. Once Mr. Skandha provides the needed clarification, the Department must provide a response consistent with the Public Records Law and its Regulations within ten (10) business days. Mr. Skandha may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR24/1843 Page 4 July 9, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Bodhisattva Skandha