Shane Moffat v. Department of Correction (SPR 20253057)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 27, 2025 SPR25/3057 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Shane Moffat appealing the response of the Department of Correction (Department/DOC) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 23, 2025, Mr. Moffat requested “all Memorandums of Understanding (MOU) between 2001 and 2019 between the Department of Correction (DOC) and four (4) agencies, the Federal Bureau of Investigation (FBI), the Drug Enforcement Administration (DEA), the United States Postal Services (USPS), and the Department of Homeland Security (DHS or DHSA).” Previous Appeal This request was the subject of a previous appeal. See SPR25/1967 Determination of the Supervisor of Records (July 22, 2025). In my July 22nd determination, I ordered the Department to provide Mr. Moffat with a response to his request. The Department responded on July 23, 2025. Unsatisfied with the Department’s response, Mr. Moffat petitioned this office and this appeal, SPR25/3057, 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 SPR25/3057 Page 2 October 27, 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. The Department’s July 23rd Response In its July 23, 2025 response, the Department provided a redacted Department of Homeland Security MOU with ICE, and withheld fifteen additional records in their entirety pursuant to Exemptions (b) and (f) of the Public Records Law. The Department also stated: …[E]ven if the Supervisor of Public Records were to deem portions of some records public, the Department would still deem them contraband and would not permit Mr. Moffat to maintain them within a correctional institution… Additionally, the Department stated, “[p]lease by advised that your request exceeds the record retention schedule. The MA DOC does not possess and MOUs with the USPS nor DEA.” Current Appeal In his appeal petition, Mr. Moffat argued against the applicability of Exemptions (b) and (f) and stated, “[a]ll other arguments and claims that depends on the requester incarceration as a reason to deny records sought are without merit.” 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.

Kate Silvia SPR25/3057 Page 3 October 27, 2025 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). Under Exemption (b), the Department stated: The Department submits that the MOU records sought are inter-agency agreements between law-enforcement agencies that provide for the investigation of illicit and illegal activities which occur within the Department’s facilities, or outside of Department facilities with the involvement of incarcerated individuals. The specific terms of each document or MOU describe what information is gathered, by whom it is gathered, and how information is shared internally within law-enforcement agencies. The information in the MOUs may alert members of the public to geographic areas federal agents are focusing on and specifically what type of information is being monitored. Disclosure of this information may also significantly risk providing incarcerated individuals and outsiders with knowledge and information which would assist them in circumventing Department regulations and statutes, as well as state and federal law. Members of the public have no legitimate interest in this information. Rather, the release of this information would only assist incarcerated individuals and outsiders to avoid the detection of criminal activity in violation of agency rules and state and federal laws. As such, the documents constitute internal personnel rules and practices within governmental units and are exempt from disclosure… Based on the Department’s response, although portions of the records may fall under Exemption (b), I find the Department has not demonstrated that the records in their entirety can be withheld under Exemption (b). It should 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). The Department must clarify this matter.

Kate Silvia SPR25/3057 Page 4 October 27, 2025 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. 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. To properly claim that Exemption (f) applies, a custodian must demonstrate that the disclosure of the records would have a prejudicial effect on its investigative efforts. This can be accomplished by describing how the records fall into one of three categories. These are the three categories that justify withholding records under Exemption (f):  The records reflect an ongoing investigation, such that any information relating to an ongoing investigation that could potentially alert suspects or targets to the activities of investigative officials;  The records reflect internal techniques, procedures, or sources, such that their disclosure would prejudice not only ongoing, but future law enforcement efforts; or

Kate Silvia SPR25/3057 Page 5 October 27, 2025  Disclosure of records would cause a chilling effect, because the exemption allows investigative officials to provide an assurance of confidentiality to individuals so that they will speak openly about matters under investigation. Such records in this third category include: any details in statements that directly or indirectly identify a private citizen who volunteers as a witness; an entire statement if the identity of witnesses is known to the requestor; and information voluntarily provided by an individual or entity to aid in the investigation. Under Exemption (f), the Department stated: …the MOUs sought involve agreements between law enforcement agencies to ferret out and stop illegal activities… [T]he Department is unable to segregate any portion of the MOUs which it objects to providing. Providing any part of an agreement, no matter how small, would acknowledge the existence of an agreement and alert the public to the type of information and intelligence gathering that is being collected. …[I]f the Department were to provide a segregated portion of an MOU it had with an identifiable agency or in an identifiable community, it would alert members of the incarcerated community and civilian public that a particular outside community was monitored more closely than others, and specifically what type of illegal activity was being scrutinized. Revealing the type of illicit activity or location targeted may allow individuals, both inside the Department’s facilities and outside in the community, to alter their behavior to avoid detection. In addition, it may place confidential informants within or outside of Department facilities at risk. For example, the Department’s institutions deal with security threat groups and illicit drug activity and these types of illegal activities are intimately connected to what goes on in communities outside the Department’s institutions. Investigations into these matters are ongoing. Revealing the extent of coordination between internal and community investigations involving these issues would allow incarcerated individuals to contact civilians outside Department facilities, or vice versa, of potential hot spots and crimes of interest for investigation. This knowledge could be used to identify confidential informants working in Department facilities and outside communities. The information could also be used to assist individuals in avoiding detection of criminal activity. Without question, it would compromise the possibility of effective law enforcement. Although the Department states that “investigations into these matters are ongoing” and argues that disclosure of the responsive records would compromise the possibility of effective law enforcement, it is unclear from the Department’s response how all of the remaining MOU records fall under Exemption (f). Specifically, it is unclear how the withheld records, in their entirety, constitute confidential investigative techniques that would be prejudicial to an ongoing investigation if disclosed. The Department has also not demonstrated how disclosure of any

Kate Silvia SPR25/3057 Page 6 October 27, 2025 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. Conclusion Accordingly, the Department ordered to provide Mr. Moffat with a response to his 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. Moffat 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: Shane Moffat