Kate Uyeda v. Worcester County Sheriff's Office (SPR 20242649)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 3, 2024 SPR24/2649 Kevin M. Gould, Esq. General Counsel Worcester County Sheriff’s Office 5 Paul X. Tivnan Drive West Boylston, MA 01583 Dear Attorney Gould: I have received the petition of Attorney Kate Uyeda, of Campaign Legal Center, appealing the response of the Worcester County Sheriff’s Office (Office) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On June 25, 2024, Attorney Uyeda requested the following: [C]opies of records, from the time period of June 21, 2022 to the present, sufficient to show: [1.] Copies of any policies and procedures governing the facilitation of voting and voter registration for eligible voters in your facility or individuals within your custody who may be housed in another county, as required by G. L. c. 54, § 25C(b). [2.] Copies of any policies for collaboration with local election officials, civil engagement community groups or any other organization, agencies or stakeholder as required by G. L. c. 54, § 25C(b)(v). [3.] Copies of any posters or written notices displayed within your facility and/or provided to incarcerated people, including individuals within your custody who may be housed in another county, regarding voting or elections as required by G. L. c. 54, § 25C(b)(i), (c)(i); and any record describing where said posters or notices were displayed or the manner in which they were disseminated. [4.] Copies of any voter information packets provided to individuals in your facility, or individuals within your custody who may be housed in another county, as required by G. L. c. 54, § 25C(b)(ii)(D). [5.] Copies of any records, including communications, indicating or reflecting how your facility provides assistance to incarcerated people in registering to vote and/or applying for an early voting by mail or absent voting ballot, 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

Kevin M. Gould, Esq. SPR24/2649 Page 2 October 3, 2024 including to individuals within your custody who may be housed in another county. [6.] Copies of any records tracking complaints, formal or informal, by individuals in your facility or within your custody related to voting or voter registration, the number of individuals in your facility or in your custody seeking to vote, and your facility’s response and/or the outcome of such complaints as required by G. L. c. 54, § 25C(b)(iv). [7.] Copies of any communications between your office and any local or state elections office regarding voting by eligible, incarcerated individuals at your facility. The Office responded on June 26, and August 29, 2024, providing numerous responsive records, including one record in redacted form. Unsatisfied with the Office’s response, Attorney Uyeda petitioned this office, and this appeal, SPR24/2649, was opened as a result. Subsequent to the opening of this appeal, in an email to this office and Attorney Uyeda on September 23, 2024, the Office provided a further response. 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. Current Appeal In her appeal petition, Attorney Uyeda contends the following: One record, a PDF titled “2024- INMATE VOTING TRACKER_Redacted,” contained a spreadsheet of five individuals in custody who had requested information relating to voter registration, voting, and absentee ballots. The first three columns of the document, which we confirmed contain the names and other

Kevin M. Gould, Esq. SPR24/2649 Page 3 October 3, 2024 identifying individuals requesting this information, are redacted. . . . Under M.G.L. c. 66, § 10A(a), we request that the supervisor of records find that the information withheld from the Worcester County Sheriff’s tracking document be deemed as nonexempt from disclosure under c. 4, § 7(26)(c) or the C.O.R.I. Act. We further request that you order Worcester County Sheriff’s Office to disclose the redacted information to us under c. 66, § 10A(a). The Office’s Responses In its June 26, 224 response, the Office provides a “Voter Tracking spreadsheet as to individuals seeking to vote and outcomes.” The Office explains that “this spreadsheet has been redacted in accordance with exemption c of the public records statute.” In its August 29, 2024 response, the Office further explains that “[t]he redacted information contains names and other personal identifying information of inmates for which exemption c (and also C.O.R.I.) would apply. Given those consideration, we are unable to provide you with an unredacted copy of the list.” In its September 23, 2024 response, the Office further elaborates on its claims for redacting the records under Exemption (a), CORI, and Exemption (c). See G. L. c. 4, § 7(26)(a), (c). 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, 154 (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

Kevin M. Gould, Esq. SPR24/2649 Page 4 October 3, 2024 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. G. L. c. 6, § 167. In its September 23rd response, under Exemption (a) and CORI, the Office argues that “C.O.R.I. does apply to the extent where there is specific discussion as to the types of charges for which an inmate has been convicted. The case cited by the requestor [Boston Globe Media Partners, LLC v. Dep’t of Crim. Just. Info. Servs., 484 Mass. 279 (2020)] has no application here as it was related to booking photos of public officials (police officers).” Based on the Office’s response, it is unclear how the responsive record may be withheld under Exemption (a) and CORI. Specifically, it is unclear how the redacted spreadsheet would constitute “information recorded in criminal proceedings that are not dismissed before arraignment.” The Office must clarify this.

Kevin M. Gould, Esq. SPR24/2649 Page 5 October 3, 2024 Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case-by-case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its September 23rd response, under Exemption (c), the Office argues the following: Here, the requestor is seeking the tracking list, including names and other personal identifying information, of those who are seeking to vote while incarcerated at the Worcester County Jail and House of Correction. As you can see from the redacted spreadsheet provided to the requestor, it contains highly personal information about inmates. Specifically, there are references to the types of charges for which they have been convicted (column 1-felony), their eligibility to vote (column 1), references to their living arraignments (column 3- homelessness) and last residential address prior to incarceration. Certainly, this type of information would weigh on individual’s reputation and “may constitute an unwarranted invasion of privacy.” Case law is clear that inmates do not forfeit all of their constitutional rights at the door upon entry to a correctional facility. In the same manner, an individual does not forfeit all of their privacy rights upon entering a correctional facility. As such, exemption (c) is applicable in relation to the list provided and the redactions of names and other personal identifying

Kevin M. Gould, Esq. SPR24/2649 Page 6 October 3, 2024 information was appropriate. I would further note that the dissemination of this type of personal information of inmates could potentially chill the efforts of inmates to register to vote to the extent they become aware their personal information is being requested and disseminated publicly through the public records process. Additionally, the list being sought is a result of the requirements of the VOTES ACT. Had the Legislature intended for this list to be publicly accessible, they would have affirmatively stated as such in the legislation. Based on the Office’s response, it is unclear how the redacted information constitutes intimate details of a highly personal nature nor how disclosure would result in personal embarrassment to an individual of normal sensibilities. It is additionally uncertain whether any of the withheld information is available from other sources. PETA, 477 Mass. at 292. Also, the Office did not provide additional information with respect to the balancing test, which examines whether the public interest in obtaining the requested information outweighs the seriousness of any invasion of privacy. The Office must clarify these matters. Conclusion Accordingly, the Office is ordered to provide Attorney Uyeda 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: Kate Uyeda, Esq.