Jalik Toombs v. Department of Correction (SPR 20251771)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 3, 2025 SPR25/1771 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Jalik Toombs 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 24, 2025, Mr. Toombs requested the following: [1] All incident reports from 5-13-25 for a[n] altercation I was involved in[;] [2] Redacted copy of the inner perimeter security report for the altercation I was involved in on 5-13-25[;] [3] Unit K2 door log from 5-13-25 showing times cell #18 was opened[.] The Department responded on June 10, 2025. Unsatisfied with the Department’s response, Mr. Toombs petitioned this office and this appeal, SPR25/1771, 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 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 SPR25/1771 Page 2 July 3, 2025 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 June 10th Response In its June 10, 2025 response, the Department provided records responsive to Item 1 of the request, redacted pursuant to the Criminal Offender Record Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law. Regarding Items 2 and 3 of the request, the Department cited Exemptions (b) and (f) of the Public Records Law to withhold the “redacted copy of the inner perimeter security report” and Exemption (b) to withhold the “Unit K2 door log.” Current Appeal In his appeal petition, Mr. Toombs stated, “I am appealing certain denials of a 3 part public records request,” and clarified that he was only appealing the Department’s response to Items 2 and 3 of the request. 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 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,

Kate Silvia SPR25/1771 Page 3 July 3, 2025 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). 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, 378 Mass. at 290 n.18. 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. The Supreme Judicial Court has stated that Exemption (f) aims at “the avoidance of premature disclosure of the Commonwealth’s case prior to trial, the prevention of the disclosure of confidential investigative techniques, procedures, or sources of information, the encouragement of individual citizens to come forward and speak freely with police concerning matters under investigation, and the creation of initiative that police officers might be completely candid in recording their observations, hypotheses and interim conclusions.” Bougas, 371 Mass. at 62; cited with approval in Reinstein, 378 Mass. at 289. 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. Inner Perimeter Security Report Under Exemption (b) and Exemption (f), the Department states: The [redacted copy of the Inner Perimeter Security report] contains information

Kate Silvia SPR25/1771 Page 4 July 3, 2025 regarding sensitive security measures and investigative techniques and information. Release of the requested record, even with redactions, would undermine the safety and security of SBCC, which would prejudice the possibility of effective law enforcement. Based on the Department’s response, I find that the Department has not demonstrated that the inner perimeter security report relates solely to the internal personnel rules and practices of the government unit. Additionally, the Department has not explained whether such record is predominantly used internally, nor explained how disclosure of the records would significantly risk circumvention of the Department’s regulations and statutes. It should also be noted that any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). As a result, I find that the Department has not met its burden to withhold the redacted copy of the inner perimeter security report in its entirety under Exemption (b) of the Public Records Law. Further, although the Department claims that the record “contains investigative techniques and information” that would prejudice the possibility of effective law enforcement, it is unclear how the record can be withheld in its entirety. Specifically, the Department did not provide any supporting information to demonstrate how disclosure of any segregable portion of the responsive record “would probably so prejudice the possibility of effective law enforcement that such disclosure would not be in the public interest[,]” as required under Exemption (f). The Department must clarify these matters. Unit K2 Door Log Under Exemption (b), the Department states: [Regarding the Unit K2 door log], [p]lease be advised that the operator’s action history is an internal security record and is exempt from disclosure… One of the DOC’s primary functions is to maintain secure penal institutions. Information regarding the operation of cell doors could present significant security and or escape risks. Disclosure of this information could prove detrimental to the DOC’s law enforcement efforts, as knowledge could enable an incarcerated individual to circumvent such procedures which would likely jeopardize public safety. This information could also reveal patterns of cell searches and security inspections which could threaten the safety and security of Souza Baranowski Correctional Center, a maximum-security penal institution and would inhibit government functions if disclosed. Based on the Department’s response, I find that the Department has not demonstrated that the door log relates solely to the internal personnel rules and practices of the government unit. Additionally, the Department has not explained whether such record is predominantly used internally, nor explained how disclosure of the record would significantly risk circumvention of the Department’s regulations and statutes. It should also be noted that any non-exempt,

Kate Silvia SPR25/1771 Page 5 July 3, 2025 segregable portion of a public record is subject to mandatory disclosure. G.L. c. 66, § 10(a). See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). As a result, I find that the Department has not met its burden to withhold the door log in its entirety under Exemption (b) of the Public Records Law. Conclusion Accordingly, the Department is ordered to provide Mr. Toombs 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. Toombs may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jalik Toombs