Corey Patterson v. Department of Correction (SPR 20242355)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 4, 2024 SPR24/2355 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Corey Patterson 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 June 13, 2024, Mr. Patterson requested “... a complete copy of any procedure, protocols, rules, regulations, memos, guidelines, SOP, etc. that your institution have pertaining to the implementation of M.G.L.c. 54, §25C (Voting by those in correctional facilities, houses of corrections, jails, and department of youth services).” In his appeal petition, Mr. Patterson clarifies his request as follows: To be clear I am not requesting any “inter-agency or intra-agency memoranda or letters” that are being use as basis to the development of such policy position regarding G.L.c. 54, §25C. What I am requesting are those procedures and protocols that were created between January 1, 2023 and June 1, 2024. Previous Appeals This request was the subject of previous appeals. See SPR24/2022 Determination of the Supervisor of Records (July 19, 2024); SPR24/2023 Determination of the Supervisor of Records (July 26, 2024); SPR24/2024 Determination of the Supervisor of Records (July 26, 2024); SPR24/2025 Determination of the Supervisor of Records (July 26, 2024); and SPR24/2026 Determination of the Supervisor of Records (July 26, 2024). In the July 19th and July 26th determination letters, I closed the previous appeals in light of the Department providing a written response on July 11, 2024. Unsatisfied with the Department’s response, Mr. Patterson petitioned this office, and this appeal, SPR24/2355, was opened as a result. 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 SPR24/2355 Page 2 September 4, 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. 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 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 11th Response In its July 11, 2024 response, the Department states that it is withholding a responsive record pursuant to Exemption (d) of the Public Records Law. See G. L. c. 4, § 7(26)(d). 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 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).

Kate Silvia SPR24/2355 Page 3 September 4, 2024 In its July 11th response, under Exemption (d), the Department argues the following: [T]his document is the subject of ongoing policy development and is therefore confidential and subject to Exemption (d) of the Public Records Law, G.L. c . 4 , §7(26) (d). Exemption (d), the deliberative process exemption, allows records custodians to withhold from disclosure records during a policy development procedure. It applies to “Inter-agency or intra- agency memoranda or letters relating to policy positions being developed by the agency; but this sub-clause 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). This exemption “protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete” which applies here. Babets v. Secretary of the Exec. Office of Human Services, 403 Mass. 230, 237 n.8, 526 N.E.2d 1261, 1265 n.8 (1988) . Based on the Department’s response, I find it is unclear what deliberative process the responsive record relates to, nor how such a process remains “ongoing and incomplete” as required by Exemption (d). See Babets, 403 Mass. at 237 n.8 (“this exemption protects such documents from disclosure only while policy is ‘being developed,’ that is, while the deliberative process is ongoing and incomplete”). Also, it is uncertain how disclosure of the record would taint any ongoing deliberative process. Further, any information contained in the responsive record that is factual in nature may be subject to disclosure, as Exemption (d) does not apply to such information. Additionally, I find the Department has not established how the record at issue constitutes “inter-agency or intra-agency memoranda or letters” as required by Exemption (d). See DOI v. Klamath Water Users Prot. 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”); City 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). The Department must clarify these matters. Additionally, it is unclear from the Department’s response which specific record the Department intends to withhold. The Department must identify any records, categories of records, or portions of records it intends to withhold under Exemption (d). See G. L. c. 66, § 10(b)(iv) (a 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”). It is further uncertain why the record must be withheld in its entirety. See Reinstein, 378 Mass. at 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).

Kate Silvia SPR24/2355 Page 4 September 4, 2024 Conclusion Accordingly, the Department is ordered to provide Mr. Patterson 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: Corey Patterson