Emmett S. Muldoon v. Department of Correction (SPR 20242159)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 12, 2024 SPR24/2159 Kate Silvia Records Access Officer Department of Correction 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Emmett Muldoon 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 July 16, 2024, Mr. Muldoon requested “the five mittimuss’ [sic] identifying . . . [a named individual]” including “the five sentences imposed on April 11, 1996 by the Norfolk Superior Court, Indictments Nos. 1000089, 90, 91, 92, and 93.” The Department responded on July 18, 2024, citing Exemption (a) of the Public Records Law to withhold the requested records in their entirety. See G. L. c. 4, § 7(26)(a). Unsatisfied with the Department’s response, Mr. Muldoon appealed, and this case was opened as a result. Status of the Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Muldoon’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. Additionally, based on information provided in the Department’s July 18 response, it is unclear if Mr. Muldoon may have a greater right of access to the responsive records outside the Public Records Law. The parties are encouraged to communicate to determine if there is another means affording Mr. Muldoon a greater right of access to the responsive records. 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 SPR24/2159 Page 2 August 12, 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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 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 July 18th Response In its July 18, 2024 response, the Department cites the Criminal Offender Record Information (CORI) Act, operating through Exemption (a) of the Public Records Law, to withhold the responsive records. See G. L. c. 4, § 7(26)(a). The Department states that “the information that [Mr. Muldoon seeks] constitutes criminal offender record information (CORI), as defined by G.L. c. 6, § 167, not public record information.” The Department further explains, “[a]s the responsive records contain CORI of identifiable inmates as defined in G.L. c. 6, § 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 appeal petition, Mr. Muldoon suggests that the Department has not met its burden to withhold the records in their entirety, arguing that the responsive records do not fall under the Department’s claimed exemption where “the purpose of the CORI statute, privacy, is not served[.]” 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

Kate Silvia SPR24/2159 Page 3 August 12, 2024 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 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 (CORI) 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.

Kate Silvia SPR24/2159 Page 4 August 12, 2024 G. L. c. 6, § 167. Burden of specificity; duty to segregate I find that the Department has not met its burden of specificity in claiming the CORI Act, operating through Exemption (a), to withhold the requested records in their entirety. Based on the Department’s response, it is unclear how the records requested by Mr. Muldoon fall within the definition of CORI. Specifically, the Department has not demonstrated that the withheld records constitute “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. It is also not clear from the Department’s response what responsive records are being withheld from disclosure. See 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 ...”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Further, it is uncertain how the records can be withheld in their entirety. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (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. Muldoon 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. Sincerely, Manza Arthur Supervisor of Records cc: Emmett Muldoon