Cornelius W. Phillips v. Department of Correction (SPR 20242784)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 22, 2024 SPR24/2784 Kate Silvia Communications Director Department of Correction Legal Division 50 Maple Street Milford, MA 01757 Dear Director Silvia: I have received the petition of Cornelius W. Phillips, Esq., of Dunn & Phillips, P.C., appealing the response of the Massachusetts 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 August 23, 2024, Attorney Phillips sought “… any and all information related to any investigation, and subsequent findings, regarding the death of [a named individual] …” On August 27, 2024, the Department provided a response. Unsatisfied with the Department’s response, Attorney Phillips petitioned this office and this appeal, SPR24/2784, 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 must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. 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 SPR24/2784 Page 2 October 22, 2024 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. Status of the requestor; reason for the request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Attorney Phillips’ status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. The Department’s August 27th Response In its August 27, 2024 response, the Department assigned Attorney Phillips’ request reference number R001051-082324, and advised him that “… the investigation into the above matter is currently pending, therefore, it is being withheld at this time pursuant to General Laws c. 4, § 7(26)(f), which exempts law enforcement records related to an ongoing investigation in which disclosure would prejudice effective law enforcement.” The Department also informed Attorney Phillips that “… once the matter is closed [he] will be provided with those records to which [he] is entitled under the public records law.” Exemption (f) Exemption (f) permits the withholding of: investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest G. L. c. 4, § 7(26)(f). A custodian of records generally must demonstrate a prejudice to investigative efforts in order to withhold requested records. Information relating to an ongoing investigation may be withheld if disclosure could alert suspects to the activities of investigative officials. Confidential investigative techniques may also be withheld indefinitely if disclosure is deemed to be prejudicial to future law enforcement activities. Bougas, 371 Mass at 62. Redactions may be appropriate where they serve to preserve the anonymity of voluntary witnesses. Antell v. Att’y Gen., 52 Mass. App. Ct. 244, 248 (2001); Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 290 n.18 (1979). Exemption (f) invites a “case-by-case consideration” of whether disclosure

Kate Silvia SPR24/2784 Page 3 October 22, 2024 “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” Id. at 289-90. Based on the Department’s response, I find it has not met its burden to withhold responsive records. It is unclear how disclosure of the responsive records “… would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest …” as required to withhold records under Exemption (f). Additionally, it is uncertain how the responsive records can be withheld in their entirety. See Reinstein, 378 Mass. at 289-90 (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. Further, it is unclear what type of records the Department possesses that are being withheld from disclosure. 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 …”). Therefore, the Department must identify the type of records in its possession that it is withholding under Exemption (f). Conclusion Accordingly, the Department is ordered to provide Attorney Phillips with a response to his 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. Attorney Phillips may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Cornelius W. Phillips, Esq.