Colman Herman v. Department of Correction (SPR 20253464)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 9, 2025 SPR25/3464 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Colman Herman 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 November 6, 2025, Mr. Herman requested “a copy of the contract” for an expert hired by the Department of Corrections. The Department responded on November 21, 2025. Unsatisfied with the response, Mr. Herman petitioned this office and this appeal, SPR25/3464, was opened as a result. Subsequently, the Department provided an additional response on November 25, 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. 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 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 SPR25/3464 Page 2 December 9, 2025 provided. See 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 November 21st Response On November 21, 2025, the Department provided responsive records with redactions. Current Appeal In his November 23, 2025 petition to this office, Mr. Herman stated, “[the Department] failed to claim any exemptions for the redactions. Moreover, the information is not legally redactable…” On November 25, 2025, the Department provided an additional response in which it cited Exemption (a) of the Public Records Law to redact a responsive record. 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). 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, 154 (1979); Ottaway Newspapers, Inc. v. Appeals Court, 372 Mass. 539, 545-546 (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. In its November 25, 2025 response, the Department states that the responsive records contain personal data. The Department further states:

Kate Silvia SPR25/3464 Page 3 December 9, 2025 The DOC may “not allow any other agency or individual not employed by the holder to have access to personal data unless such access is authorized by statute or regulations which are consistent with the purposes of this chapter or is approved by the data subject whose personal data are sought.” G.L. c. 66A, §2(b). “A governmental entity may use exemption (a) as a basis for withholding requested materials where the language of the underlying exempting statute suggests that the public’s right to inspect records under the Public Records Law is restricted.” Opinion of the Supervisor of Public Records, SPR01/388; SPR01/586, citing Attorney General v. Collector of Lynn, 377 Mass. 151, 154 (1979). Fair Information Practices Act (FIPA) The Department is advised that FIPA and the Public Records Law are to be construed to work together, consistent with the legislative purpose. 32 Op. Att’y Gen. 157, 160 (May 18, 1977). FIPA cannot provide a basis for withholding the requested information unless the records fall within a statutory exemption to the definition of public records. See Allen v. Holyoke Hosp., 398 Mass. 372, 379 (1986) (stating that “determining whether the record sought is protected by FIPA depends on whether the record is a public record pursuant to G. L. c. 4, § 7 Twenty-sixth, and subject to the disclosure provisions of G. L. c. 66A”). FIPA, by itself, cannot justify withholding information. A custodian must first specifically explain how the withheld information is exempt from the Public Records Law. Once a record is found to be exempt from the definition of public records, FIPA may also operate to restrict disclosure. Based on the Department’s response, it is unclear how the cited statute specifically or by necessary implication permits the Department to redact the responsive record. Please be advised that for Exemption (a) to apply, said statute or regulation must either expressly state that the withheld record is not subject to disclosure under the Public Records Law, or limit dissemination of said information to a defined group or individuals or entities. The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Herman 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. Herman may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR25/3464 Page 4 December 9, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Colman Herman