Fr. Robert Gaudreau v. Department of Correction (SPR 20243089)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 25, 2024 SPR24/3089 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 Fr. Robert Gaudreau 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 8, 2024, Fr. Gaudreau requested the following records “contained in file DOC-MCI-N-23-21”: [1] all confidential incidents report authored by [3 identified individuals], provided to commissioner hearing officer on June 16 and 21, 2023. Also a meeting report from a meeting with [two identified individuals]… dated September 13, 2022... [2] A copy of [the hearing officer’s] report... [3] Copes of two (2) videos introduced as evidence, both dated 9 February 2023... [4] Copies of the three (3) transcripts of three (3) incarcerated men interviewed in the investigation... [5] 03/31 /23 copy of case submitted to [a named individual] of the PSU. Investigator database updated same date 03/31/23. Returned ... for review and revision. Copy of the review and revision... [6] 04/25/23 sent to HQ copy of the report... [7] 03/07/23; notes of interviews of incarcerated men... [8] 03/22/23 ... CJIS run ... Copy of this CJIS report... [9] Copy of disk that was burned with the interviews 03/31/23... Previous Appeals This request was the subject of previous appeals. See SPR24/1997 Determination of the Supervisor of Records (July 26, 2024) and SPR24/2668 Determination of the Supervisor of 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 SPR24/3089 Page 2 November 25, 2024 Records (October 4, 2024). In my October 4th determination, I ordered the Department to clarify whether it possesses additional records responsive to the request. Subsequently, the Department responded on November 8, 2024. Unsatisfied with the Department’s response, Fr. Gaudreau petitioned this office, and this appeal, SPR24/3089, 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. 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 November 8th Response In its November 8, 2024 response, the Department cites Exemptions (a), (b), (c) and (f) for withholding numerous responsive records, and indicates that it does not possess records responsive to parts of the request. Items 1, 4, 5, 6, 7 In his appeal petition, Fr. Gaudreau contends that the Department possesses additional records responsive to Items 1, 4, 5, 6, and 7 of his request. The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Further, in accordance with the Public Records Law, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). In its November 8th response, the Department confirms that it does not possess additional records responsive to Items 1, 4, 5, 6, and 7 of the request. Where the Department has confirmed that it does not possess additional responsive records, I find that Fr. Gaudreau’s appeal regarding

Kate Silvia SPR24/3089 Page 3 November 25, 2024 these portions of the request is resolved. Item 2 The Department cites Exemption (c) of the Public Records Law for withholding records responsive to Item 2 of the request. See G. L. c. 4, § 7(26)(c). 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). Massachusetts courts have found that “core categories of personnel information that are ‘useful in making employment decisions regarding an employee’” may be withheld from disclosure. Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). For example, “employment applications, employee work evaluations, disciplinary documentation, and promotion, demotion, or termination information pertaining to a particular employee,” may be withheld pursuant to Exemption (c). Wakefield Teachers Ass’n v. Sch. Comm., 431 Mass. 792, 798 (2000). The courts have also discussed specific categories of records that may be redacted under Exemption (c). See Globe Newspaper Co. v. Exec. Office of Admin. and Fin., Suffolk Sup. No. 11-01184-A (June 14, 2013). 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.

Kate Silvia SPR24/3089 Page 4 November 25, 2024 Under Exemption (c), the Department argues the following: With respect to personnel documentation, the courts have in the past determined that disciplinary and other personnel documentation included in the investigation materials sought in this request are “absolutely exempt from disclosure,” as non- disclosure protects “the government’s ability to function effectively as an employer.” Wakefield Teachers Association v. School Committee of Wakefield, 431 Mass. 792, 799, 802 (2000); see also Globe Newspaper Co. v. Boston Retirement Brd., 388 Mass. 427, 438 (1982); Brogan v. School Committee of Westport, 401 Mass. 306, 308 (1987). Indeed, specifically with respect to disciplinary documentation related or resulting from a Police Department internal affairs investigation, the courts had determined that such documentation is exempt from disclosure under Exemption (c). See, e.g., Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester, 58 Mass. App. Ct. 1, 5 (2003). In this case, based on the Department’s response, it is unclear how the responsive records constitute one of the core categories of personnel information useful in making employment decisions regarding an employee. It is additionally uncertain how the records contain intimate details of a highly personal nature, or how disclosure would result in personal embarrassment to an individual of normal sensibilities. Also, the Department did not provide 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. PETA, 477 Mass. at 292. The Department must clarify these matters. Item 3 In its response, the Department cites Exemption (b) of the Public Records Law for withholding video surveillance recordings responsive to Item 3 of the request. See G. L. c. 4, § 7(26)(b). Exemption (b) Exemption (b) permits the withholding of records that are: Related solely to internal personnel rules and practices of the government unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental functions requires such withholding G. L. c. 4, § 7(26)(b). There are no authoritative Massachusetts decisions interpreting Exemption (b). The general purpose of the cognate federal exemption is to relieve agencies of the burden of assembling and maintaining for public inspection materials in which the public cannot reasonably be expected to have an interest. See Dep’t of the Air Force v. Rose, 425 U.S. 352,

Kate Silvia SPR24/3089 Page 5 November 25, 2024 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an exemption for records which are “related solely to the internal personnel rules and practices of an agency”); see also Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 432 (1983) (Massachusetts Public Records Law modeled on federal Freedom of Information Act). The courts have interpreted the federal exemption to allow withholding of materials that, if released, could cause agency rules or regulations to be circumvented. See Fiumara v. Higgins, 572 F. Supp. 1093, 1102 (1983) (internal codes are exempt where disclosure may enable outsiders to circumvent agency functions). The analysis employed by the federal courts requires a two-pronged test. Material is exempt if it is predominantly used internally and if disclosed would significantly risk circumvention of agency regulations and statutes. See Marrera v. United States Dep’t of Justice, 622 F. Supp. 51, 55 (D.D.C. 1985) (Bureau of Prisons access and identity codes were properly withheld as materials in which the public would have no legitimate interest or which would compromise security if disclosed). Under Exemption (b), the Department argues the following: Please be advised that video surveillance recordings are not public records.... Video taken within a correctional facility raises serious security concerns as such videos contain images of sensitive security measures such as camera angles or blind spots. This information, if released, could be used to undermine the safety and security of the facilities, risking the safety of incarcerated individuals and staff, as well as the public at large. Additionally, release of the video may reveal the particular angle of the camera or disclose the location of a hidden surveillance camera. Although incarcerated individuals may be aware that there are surveillance cameras at Souza Baranowski Correctional Center (SBCC), a maximum-security facility, they may not be aware of all of the locations of all of the surveillance cameras. Release of the videos may disclose those locations, thereby hindering the Department of Correction’s ability to monitor SBCC in the future.... Based on the Department’s response, I find the Department has met its burden to show how disclosing any portion of the responsive video would depict “internal personnel rules and practices,” such as sensitive security measures related to video monitoring of the facility, and the “proper performance of necessary governmental functions,” such as maintaining a secure penal institution, requires such withholding. Therefore, I find the Department has met its burden to withhold the responsive video under Exemption (b). Item 8 In response to Item 8 of the request, the Department states that “[a] CJIS report is a criminal record of another agency and is not public record.” Based on the Department’s response, it is unclear whether the Department possesses

Kate Silvia SPR24/3089 Page 6 November 25, 2024 records responsive to Item 8 of the request. If the Department does possess records responsive to Item 8, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. 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”). Item 9 In regard to Item 9 of the request the Department, cites Exemptions (a), (b), and (f) for withholding responsive records. 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 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

Kate Silvia SPR24/3089 Page 7 November 25, 2024 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. Under Exemption (a) and CORI, the Department argues the following: [T]he information that you seek constitutes criminal offender record information (CORI), as defined by G.L. c. 6, § 167, not public record information. As 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 disclosure by statute.” As explained by the Supervisor of Public Records, access to records which satisfy the definition of CORI is restricted pursuant to the CORI Act as it operates through exemption (a). The responsive ... records necessarily contain CORI as they concern an identifiable individual and relate to their incarceration. Therefore, the CORI Act ... will allow the Department to withhold the responsive ... information.... The Department, as a criminal justice agency, has a duty and an obligation to withhold CORI from non-authorized individuals.... Based on the Department’s response, it is unclear how the responsive record may be withheld under Exemption (a) and CORI. Specifically, it is not clear how the withheld record constitutes “information recorded in criminal proceedings that are not dismissed before arraignment.” See G. L. c. 6, § 167. The Department must clarify this.

Kate Silvia SPR24/3089 Page 8 November 25, 2024 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 v. Chief of Police of Lexington, 371 Mass. 59, 62 (1976). 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 “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest.” See Reinstein, 378 Mass. at 289-90. Under Exemption (f), the Department argues the following: The responsive record is also exempt pursuant G.L. c. 4 § 7 (26) (b) and (f). Massachusetts General Laws c. 4, § 7 (26) (b) exempts records “related solely to internal personnel rules and practices of the governments unit, provided however, that such records shall be withheld only to the extent that the proper performance of necessary governmental function require withholding.” The public records law also exempts investigatory materials necessarily compiled out of the public view by law enforcement or other investigatory officials the disclosure of which materials would prejudice the possibility of effective law enforcement. G.L. c. 4, §7 (26) (f). Confidential investigative techniques if disclosed could be prejudicial to future law enforcement activities. Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials. It is additionally not certain how the records pertain to an ongoing investigation. Further, the Department did not demonstrate how disclosure of the withheld 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). The Department must clarify these matters. Further, with regard to the Department’s claim under Exemption (b), in this case, the Department has not demonstrated how a “copy of [a] disk that was burned with the interviews” is

Kate Silvia SPR24/3089 Page 9 November 25, 2024 solely related to internal personnel rules and practices of the government unit. Additionally, the Department has not explained whether such a record is predominantly used internally, and it is unclear how such a record would significantly risk circumvention of agency regulations and statutes. Therefore, the Department has not met its burden to withhold the responsive records under Exemption (b). Conclusion Accordingly, the Department is ordered to provide Fr. Gaudreau 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: Fr. Robert Gaudreau