Joshua Carrier v. Old Colony Correctional Center (SPR 20241879)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1879 Gayle Tickel Records Access Officer Old Colony Correctional Center One Administration Road Bridgewater, MA 02324 Dear Ms. Tickel: I have received the petition of Joshua Carrier appealing the response of the Old Colony Correctional Center (Center) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 8, 2024, Mr. Carrier requested the following records: [1.] OCCC menus being used as of May 8, 2024 including ADA (CCHH), Kosher, Regular, Bland, etc.[;] [2.] IBF (Z-1) Account November 2023 - April 2024[.] Previous Appeals This request was the subject of previous appeals. See SPR24/1673 Determination of the Supervisor of Records (June 5, 2024) and SPR24/1689 Determination of the Supervisor of Records (June 18, 2024). In my June 18th determination, I found that the Center had not met its burden of specificity in responding to the records request. Specifically, I noted it was unclear which exemption of the Public Records Law the Center cited in order to redact the responsive record it provided. On June 21, 2024, the Center responded providing additional information regarding the redactions. Unsatisfied with the Center’s June 21st response, Mr. Carrier petitioned this office and this appeal, SPR24/1879, 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, 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

Gayle Tickel SPR24/1879 Page 2 July 11, 2024 § 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). The Center’s June 21st Response In its previous response, the Center provided Mr. Carrier with a responsive record in the form of a 26-page report containing redacted information. The Center did not cite an exemption in support of its redactions. In its June 21, 2024 response, the Center cites the Criminal Offender Record Information (CORI) Act, operating through Exemption (a) of the Public Records Law, to redact the responsive record. See G. L. c. 4, § 7(26)(a). The Center advises, “[a]s the responsive [record] [contains] CORI of identifiable inmates as defined in G.L. c. § 167, pursuant to G.L. c. 4, § 7(26)(a), CORI is exempt from disclosure under the public records statute as records that are ‘specifically or by necessary implication exempted to [sic] disclosure by statute.’” Current Appeal In his current appeal, Mr. Carrier claims that the Center did not meet its burden to redact the responsive record. 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). This exemption creates two categories of exempt records. The first category includes

Gayle Tickel SPR24/1879 Page 3 July 11, 2024 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. Criminal Offender Record Information The current definition of CORI is as follows: “Criminal offender record information,” records and data in any communicable form compiled by a Massachusetts criminal justice agency which concern an identifiable individual and relate to the nature or disposition of a criminal charge, an arrest, a pre-trial proceeding, other judicial proceedings, previous hearings conducted pursuant to section 58A of chapter 276 where the defendant was detained prior to trial or released with conditions under subsection (2) of section 58A of chapter 276, sentencing, incarceration, rehabilitation, or release. Such information shall be restricted to information recorded in criminal proceedings that are not dismissed before arraignment. Criminal offender record information shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable, or intelligence information. Criminal offender record information shall be limited to information concerning persons who have attained the age of 18 and shall not include any information concerning criminal offenses or acts of delinquency committed by any person before he attained the age of 18; provided, however, that if a person under the age of 18 was adjudicated as an adult in superior court or adjudicated as an adult after transfer of a case from a juvenile session to another trial court department, information relating to such criminal offense shall be criminal offender record information. Criminal offender record information shall not include information concerning any offenses which are not punishable by incarceration. G. L. c. 6, § 167. Based on the Center’s June 21st response, it is unclear how the redacted information falls within the definition of CORI. Specifically, it is not clear how the redacted portions of the responsive record constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as described above. The Center must clarify this matter.

Gayle Tickel SPR24/1879 Page 4 July 11, 2024 Conclusion Accordingly, the Center is ordered to provide Mr. Carrier 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. Sincerely, Manza Arthur Supervisor of Records cc: Joshua Carrier