Darius Gibson v. Department of Correction (SPR 20243458)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 14, 2025 SPR24/3458 Kate Silvia Director of Communications Records Access Officer Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Darius Gibson 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 December 8, 2024, Mr. Gibson requested the following: [1] Documentation as to the number of times my tattoo history was researched in inmate management system in the following year 2021, 2022 and 2023. [2] Documentation as to which DOC facility my tattoo history was researched at in inmate management system in 2021, 2022 and 2023. [3] All documentation and emails regarding me calling internal affairs hotline on January 19, 2023. [4] All documentation stating the date [a specified] officer ... used inmate management system to view my tattoo history. The Department responded on December 17, 2024. Unsatisfied with the Department’s response, Mr. Gibson petitioned this office, and this appeal, SPR24/3458, 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). 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 SPR24/3458 Page 2 January 14, 2025 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 his appeal petition, Mr. Gibson states the following: [He is] specifically ... appealing request #4. [He is] trying to file a complaint with the D.O.C. internal affairs unit and show misconduct with correctional officers. Providing [Mr. Gibson] a date isn’t endangering security of a correctional facility. Upon a review of the appeal petition, it appears Mr. Gibson objects only to the Department’s response with regard to Item 4 of his request. The Department’s December 17th Response In its December 17, 2024 response, the Department provides records responsive to Item 3 of the request, and indicates that it is withholding records responsive to Items 1, 2, and 4 of the request pursuant to Exemptions (b), (f), and (n) of the Public Records Law. See G. L. c. 4, § 7(26)(b), (f), (n). 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, 362-70 (1976) (interpreting the federal Freedom of Information Act, which provides an

Kate Silvia SPR24/3458 Page 3 January 14, 2025 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). In its December 17th response, under Exemption (b), the Department argues the following: Please be advised that the above request is exempt from disclosure Pursuant to G.L. c. 4, § 7 (26) (b), which exempts records related solely to internal personnel rules and practices of the governmental unit, provided however, that such records shall be withheld only to the extent that proper performance of necessary governmental function required withholding. One of the DOC’s primary functions is to maintain secure penal institutions. Information regarding certain procedures used by correctional officers during law enforcement activities may related [sic] solely to the internal working of the DOC. In this case, the Department has not demonstrated how the records of dates that a database was accessed are solely related to internal personnel rules and practices of the government unit. Additionally, the Department has not explained whether such records are predominantly used internally, and it is unclear how such records of dates 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). 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).

Kate Silvia SPR24/3458 Page 4 January 14, 2025 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. Exemption (n) Exemption (n) applies to: records, including, but not limited to, blueprints, plans, policies, procedures and schematic drawings, which relate to internal layout and structural elements, security measures, emergency preparedness, threat or vulnerability assessments, or any other records relating to the security or safety of persons or buildings, structures, facilities, utilities, transportation, cyber security or other infrastructure located within the commonwealth, the disclosure of which, in the reasonable judgment of the record custodian, subject to review by the supervisor of public records under subsection (c) of section 10 of chapter 66, is likely to jeopardize public safety or cyber security. G. L. c. 4, § 7(26)(n). Exemption (n) allows for the withholding of certain records which if released would jeopardize public safety. The first prong of Exemption (n) examines “whether, and to what degree, the record sought resembles the records listed as examples in the statute;” specifically, the “inquiry is whether, and to what degree, the record is one a terrorist ‘would find useful to maximize damage.’” People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 289-90 (2017). The second prong of Exemption (n) examines “the factual and contextual support for the proposition that disclosure of the record is ‘likely to jeopardize public safety.’” Id. at 289-90. The PETA decision further provides that “[b]ecause the records custodian must exercise ‘reasonable judgment’ in making that determination, the primary focus on review is whether the custodian has provided sufficient factual heft for the supervisor of public records or the reviewing court to conclude that a reasonable person would agree with the custodian’s determination given the context of the particular case.” Id. PETA also provides that “[t]hese two prongs of exemption (n) must be analyzed together, because there is an inverse correlation between them. That is, the more the record sought

Kate Silvia SPR24/3458 Page 5 January 14, 2025 resembles the records enumerated in exemption (n), the lower the custodian’s burden in demonstrating ‘reasonable judgment’ and vice versa.” PETA, at 290. In its response, under Exemptions (f) and (n), the Department argues the following: It is paramount to preserve not only the security, but confidentiality of information contained within the Inmate Management System, which disclosure of the requested information would jeopardize. The information you requested is not readily accessible to users in the normal course of business and requires a special profile to retrieve back-end user information. Release could compromise investigations and investigatory techniques by alerting incarcerated individuals if they are under investigation or surveillance for nefarious conduct. Based on the Department’s response, it is unclear how the responsive records constitute investigatory materials as required under Exemption (f). 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). Additionally, based on the Department’s response, it is unclear how the requested records resemble the records listed as examples in the statute under Exemption (n). See PETA, 477 Mass. at 289. Particularly, it is not clear how the records resemble “blueprints, plans, policies, procedures and schematic drawings” that relate to security measures. It is also uncertain how the records are the type that “a terrorist would find useful to maximize damage” as required under Exemption (n). Where the requested records bear a minimal resemblance to the categories listed in Exemption (n), the burden on the custodian to prove its “reasonable judgment” that disclosure is likely to jeopardize public safety is greatest. See id. at 290 (noting “inverse correlation” between the two prongs of Exemption (n) inquiry). Further, the Department did not provide factual heft to support withholding the requested records pursuant to Exemption (n). Specifically, the Department has not sufficiently explained how disclosure of the records is likely to jeopardize public safety or cyber security. See PETA, at 289-90. The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Gibson 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.

Kate Silvia SPR24/3458 Page 6 January 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson