Joshua Carrier v. Department of Correction (SPR 20250741)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 31, 2025 SPR25/0741 Kate Silvia Records Access Officer Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Ms. Silvia: I have received the petition of Joshua Carrier 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 May 8, 2024, Mr. Carrier requested the following records: [1.] OCCC menus being used as of May 8, 2024 including ADA (CCHH), Kosher, Regular, Bland, etc.[;] [2.] IBF (Z-1) Account November 2023 - April 2024[.] Previous Appeals; In Camera Review This request was the subject of previous appeals and a subsequent in camera review. See SPR24/1673 Determination of the Supervisor of Records (June 5, 2024), SPR24/1689 Determination of the Supervisor of Records (June 18, 2024), SPR24/1879 Determination of the Supervisor of Records (July 11, 2024), and SPR24/2262 Determination of the Supervisor of Records (August 23, 2024; November 18, 2024). In my November 18th determination, I found that the Old Colony Correctional Center (Center) had not met its burden to redact the responsive record under the CORI Act, as it operates through Exemption (a) of the Public Records Law. Specifically, I noted that the Center had not demonstrated that the redacted information constituted “information recorded in criminal proceedings that are not dismissed before arraignment” as defined in G. L. c. 6, § 167. Subsequently, the Department provided a further response on behalf of the Center on December 23, 2024. Unsatisfied with the Department’s response, Mr. Carrier petitioned this office and this appeal, SPR25/0741, 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 SPR25/0741 Page 2 March 31, 2025 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. Att’y 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. The Department’s December 23rd Response In its December 23, 2025 response, the Department stated the following: Old Colony Correctional Center (OCCC) provided Mr. Carrier with the Inmate Benefit Fund (IBF) printout with the names of other incarcerated individuals redacted. This matter was then subject to several appeals which resulted in an in- camera review of the requested records by the Supervisor of Records (SOR). . . . In your November 18, 2024, decision, you rejected the Department’s justification for withholding the records based on a narrow reading of the definition of CORI in M.G.L. c. 6, § 167. The overly narrow interpretation of the statute all but renders the CORI statute meaningless. In your November 18, 2024, decision you wrote that DOC may not withhold the redacted names of other incarcerated individuals within the report because one sentence in the CORI definition in M.G.L. c. 6, § 167 states: “such information shall be restricted to information recorded in criminal proceedings.” (emphasis added). By this interpretation, no records other than those directly part of a criminal proceeding (presumably an arraignment, bail hearing, or other pre- trial motion) are CORI. This is not how statutes are interpreted by courts: “[a] fundamental tenant of statutory interpretation is that language should be given effect consistent with its plain meaning and in light of the aim of the Legislature unless to do so would achieve an illogical result.” Dacey v. Burgess, 491 Mass. 311, 314 (2023). The intent of the CORI statute is to control and limit the dissemination of personal information regarding inmates and others with criminal records for privacy reasons. The rest of the statutory definition of CORI states that:

Kate Silvia SPR25/0741 Page 3 March 31, 2025 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. (emphasis added) A commonsense reading of the definition supports the Commonwealth’s position. As noted above, the definition, in relevant part, states that CORI consists of records and data that “concern an identifiable individual” and “relate to”, among other items, “. . . sentencing, incarceration, rehabilitation, or release.” The language specifically states that CORI data relates to the “nature or disposition of a criminal charge,” including “sentencing, incarceration, rehabilitation, or release.” Clearly, the sentence you cite to support your rejection of the Department’s position on the requested records, namely “information recorded in criminal proceedings that are not dismissed before arraignment,” must be read in conjunction with the rest of the paragraph. In other words, in cases where a party is accused of a crime, but the charges are dismissed before arraignment – the very beginning of the criminal process – that criminal information is not CORI. Information about the aftermath of criminal proceedings, including the individual’s incarceration, is CORI. To read it otherwise renders the rest of the definition irrelevant. Pursuant to your office’s interpretation, almost all records pertaining to a person’s incarceration would be public records, which is clearly counter to the Legislature’s intent in creating CORI protections for incarcerated individuals. The last sentence of the definition confirms this view. It states that CORI “shall not include evaluative information, statistical and analytical reports and files in which individuals are not directly or indirectly identifiable. . . .” (emphasis added). Where the statute explicitly excludes CORI information where the inmate cannot be identified, it logically means that information where the individual can be identified is CORI-protected. . . . As the responsive records contain CORI of identifiable incarcerated individuals as defined G.L. c. 6, § 167, pursuant to G.L. c. 4, § 7(26)(a), CORI is exempt from

Kate Silvia SPR25/0741 Page 4 March 31, 2025 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 concern an identifiable individual and relate to their incarceration. Therefore, the CORI Act ... will allow the Department to withhold the responsive ... information. Opinion of the Supervisor of Public Records, SPR0l/388; SPR0l/586. The Department, as a criminal justice agency, has a duty and an obligation to withhold CORI from non-authorized individuals. Massachusetts Correction Officers Federated Union (MCOFU) v. Department of Correction, 76 Mass. App. Ct. 1111 (2010)(1:28 decision), citing to Hawkins v. Commissioner of Correction, 406 Mass. 898, 900 (1990); Mass. Sober Housing Corp. v. Automatic Sprinkler Appeals Board, 66 Mass. App. Ct. 701, 708 (2006) (and cases cited); Hastings v. Commissioner of Correction, 424 Mass. 46, 50 11. 10 (1997) (citing Boston Police Superior Officers Fed’n v. Boston, 414 Mass. 458, 462 (1993)). “A governmental entity may use exemption (a)[of G.L. c. 4, §7(26)] as a basis for withholding requested materials where the language of the underlying exemption statute suggests that the public’s right to inspect records under the Public Records Law is restricted.” Opinion of the Supervisor of Public Records, SPR0l/388; SPR0l/586, citing Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979). Information regarding incarcerated individuals’ activities, financial records, discipline, participation in investigations, housing assignments and other such information is not public record. Massachusetts Correction Officers Federated Union v. Department of Correction supra; Kordis v. Superintendent, Souza Baranowski Correctional Center, 58 Mass. App. Ct. 902 (2003)(inmate account information is CORI because it relates to incarceration). . . .” The Department stands by its determination that the redacted information requested by Mr. Carrier is not public information and is protected by the CORI statute. Therefore, in accordance with its obligations under the CORI statute, the Department cannot comply with this request. 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).

Kate Silvia SPR25/0741 Page 5 March 31, 2025 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, 54 (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 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 (emphasis added).

Kate Silvia SPR25/0741 Page 6 March 31, 2025 Based on the Department’s December 23rd response, and in conjunction with the Department’s previous responses dated May 23, June 21, and July 15, 2024, I find the Department has not met its burden to demonstrate how the redacted information falls within the definition of CORI. Specifically, it remains unclear how the redacted portions of the responsive record constitute “information recorded in criminal proceedings that are not dismissed before arraignment,” as defined in G. L. c. 6, § 167 (emphasis added). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Carrier with a response in a manner consistent with this order, the Public Records Law and its Regulations within 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: Joshua Carrier