Robert W. Anderson, Jr. v. Department of Correction (SPR 20251158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records May 9, 2025 SPR25/1158 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 Robert W. Anderson, Jr. appealing the response of the Department of Correction (Department/MADOC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 14, 2025, Mr. Anderson requested the following: [1] The 2025 Religious Services Handbook; [2] The number of Incarcerated Individuals being held in: 1) Mass. Alcohol & Substance Abuse Center; 2) Mass. Treatment Center; 3) MCI Norfolk; 4) NCCI; 5) Northeastern Correctional Center; 6) Old Colony Correctional Center; 7) Pondville Correctional Center; 8) MCI Shirley; and, 9) Souza-Baranowski Correctional Center; [3] The number of Captains assigned to each facility in ¶b, broken down by the Shift (7-3, 3-11, 11-7) which they’re assigned; [4] The number of Lieutenants (COIIIs) assigned to each facility in ¶b, broken down by the Shift (7-3, 3-11;11-7) which they’re assigned; [5] The number of Sergeants (COIIs) assigned for each·.·facility in ¶b, broken down by the Shift (7-3, 3-11, 11-7, etc.) which they’re assigned to; [6] The number of Correctional Officers (COs) assigned to. each prison listed in ¶b; broken down by the shift (7-3, 3-11, 1-9, 11-7) to which they’re assigned; [7] A copy of the Handbook/Orientation Manual for the Old Colony BAU; [8] A copy of the Handbook/Orientation Manual for ALL SAUs in the MADOC; [9] A copy of the Handbook/Orientation Manual for ALL ISUs in the MAOOC; [10] A copy of the Handbook/Orientation Manual/Guidelines for ALL RTUs in the MADOC; and, [11] A copy of the Canteen Manual which MADOC uses to ensure their Canteen 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 SPR25/1158 Page 2 May 9, 2025 Contractor, Keefe Canteen Corp., complies with the mandate of M.G.L. Ch. 127, §171. The Department responded on February 5, 2025. Unsatisfied with the Department’s response, Mr. Anderson petitioned this office, and this appeal, SPR25/1158, 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 February 5th Response In its February 5, 2025 response, the Department provides records responsive to Parts 1, 2, 7, 8, 10 of the request, and claims it has no records responsive to Part 9. The Department cites Exemptions (b) and (n) of the Public Records Law for withholding records responsive to Parts 3- 6 of the request. See G. L. c. 4, § 7(26)(b), (n). Parts 3 through 6 In his appeal petition, Mr. Anderson argues the following: With regard to Requests 3-6 . . .Petitioner asserts that neither exemption [(b) or (n)] would apply to these Requested Records. Exemption (b) Exemption (b) permits the withholding of records that are:

Kate Silvia SPR25/1158 Page 3 May 9, 2025 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 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). With regard to Parts 3 through 6, under Exemption (b), the Department argues the following: These records are being withheld as they are exempt from disclosure pursuant to G.L. c. 4, § 7 (26) (b)[.] . . . Disclosure of the requested records would clearly inhibit governmental functions by revealing staffing levels and patterns. Disclosure of this information could prove detrimental to the DOC’s law enforcement efforts, as knowledge of DOC security procedures could enable an incarcerated individual to circumvent such procedures. In this case, the Department has not demonstrated that the withheld records 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 would significantly risk circumvention of agency regulations and

Kate Silvia SPR25/1158 Page 4 May 9, 2025 statutes. Therefore, the Department has not met its burden to withhold the responsive records under Exemption (b). 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 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 Exemption (n), the Department argues the following: Additionally, exemption (n) of G.L. c. 4, §7(26) also applies. . . . Release of staffing levels in a prison setting would prove detrimental to the Department’s law enforcement efforts to prevent escapes, group demonstrations,

Kate Silvia SPR25/1158 Page 5 May 9, 2025 disturbances, etc. and would likely jeopardize public safety. Based on the Department’s response, it is unclear how the requested records resemble the records listed as examples in the statute. 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 the withholding of 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. Additionally, it is unclear from the Department’s response which specific records the Department intends to withhold. The Department must identify the records, categories of records, or portions of records it intends to withhold under Exemptions (b) and (n). 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”). It is further uncertain why the records must be withheld in their entirety. The Department must explain whether the records can be redacted so that segregable portions can be provided. 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). Parts 9, 10, and 11 Records in Existence; Possession, Custody, or Control Please be advised that 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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 February 5th response, the Department explains the following: Response 9 There are no records responsive to your request. . . .

Kate Silvia SPR25/1158 Page 6 May 9, 2025 Response 10 The facility will send you a copy once the review has been completed. . . . Response 11 Please be advised that the MADOC is not the custodian nor in possession of a “canteen manual.” In his appeal petition, Mr. Anderson argues the following: With regard to Response 9 of the defendant’s Response it is false that there is no “Handbook/ Orientation Manual for ISU” available. . . . With regard to Response 10 as of this date Petitioner still has not received copies of the Manuals which defendant asserted would be sent once “a review has been completed.” . . . [With regard to] Response 11 . . . MADOC must have some Catalog or Price List which their vendor uses to purchase canteen items for Inmates in their care and custody since the Legislature passed into law M.G.L. Ch. 127, §171 which requires the defendant Agency to monitor what their vendor is charging those in its care and custody for canteen items. Based on the Department’s response, and the information and clarification provided in Mr. Anderson’s appeal petition, it is unclear whether the Department possesses records responsive to Mr. Anderson’s requests. If the Department does possess additional responsive records, 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”). Conclusion Accordingly, the Department is ordered to provide Mr. Anderson 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. Mr. Anderson may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR25/1158 Page 7 May 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Robert W. Anderson, Jr.