When the state House and Senate passed a five-year moratorium on building any new prisons and jails last year, those who had spent years fighting against the construction of a new women’s prison thought that the Legislature was finally listening.
But, in one of his last moves in office last August, former Gov. Charlie Baker vetoed the bill. Now, under Gov. Maura Healey, the new women’s prison is back on the table. What’s more, the state agencies in charge of prisons and public construction are blocking public records requests from activists opposed to the project for meeting minutes and other planning documents.
According to activists who requested those records, the state’s Division of Capital Asset Management and Maintenance, or DCAMM, and the state Department of Correction are refusing to share information about the project’s progress with concerned citizens through a controversial exemption to the state’s public records law known as the “deliberative process exemption.”
Organizations and people concerned about the expansion of prisons in Massachusetts have received heavily redacted copies of documents in two recent attempts at seeking public information about the project. DCAMM released bi-weekly meeting minutes dating from September to May, but most pages were completely redacted.
“The lack of transparency and accountability is unacceptable,” said Mallory Hanora, the executive director of Families for Justice as Healing, which is leading the #NoNewWomensPrison Campaign and requested the records.
As incarceration rates in Massachusetts continue to fall and alternatives to prison are organized and passed into law, the Department of Correction continues to insist that a $50 million new women’s prison project is necessary to eventually replace MCI-Framingham, which is the oldest continuously operating prison in the United States. Organizers fighting the project are struggling to gather information in a state with some of the most opaque public records laws in the country. Massachusetts is the only state where the Legislature, courts and governor’s office all claim to be entirely exempt from disclosure laws. Healey campaigned on the promise that she would be one of the most transparent governors in state history, but quickly backtracked on that once in office.
Hanora and her legal counsel are in the process of appealing the redactions. The most recent release from DCAMM included the list of state employees attending the bi-weekly planning meetings. The names John Rose and Sean Foley — both listed as construction coordinators for the Department of Correction — are bad news to the project’s opponents.
According to Massachusetts public records law, the deliberative process exemption that DCAMM is citing applies to “inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency.”
“This subclause shall not apply to reasonably completed factual studies or reports on which the development of such policy positions has been or may be based,” the law reads.
The exemption is one of 23 such exemptions in Massachusetts. It divides all governmental information into two categories: “fact” and “opinion.” Factual information — like whether a final decision has been made about the prison project — is not protected by the exemption and must be made available to the public. The exemption protects “pre-decisional” and opinion-based information — the initial recommendation of a policy-maker, for instance.
“According to the Secretary of State’s Guide on Massachusetts Public Records Law, state agencies can withhold documents chronicling discussions related to ‘legal and policy matters,’ but they must reveal factual matters involved in the deliberative process,” said Catherine Sevcenko, who is senior counsel for the National Council for Incarcerated & Formerly Incarcerated Women and Girls, of which FJAH is a member.
Sevcenko said that it’s unclear what the agency has redacted, but that “blacking out 90% of a document on the grounds that it reflects opinion rather than facts is concerning.”
“Either the decision to build a new women’s prison is being taken with a scant factual basis, or the Commonwealth is withholding information that citizens are entitled to know,” Sevcenko said. “Neither is acceptable.”
In its response to Hanora’s records request, DCAMM said that the redactions it made to the records were justified under the deliberative process exemption.
“Please note, portions of the requested records have been withheld or redacted pursuant to the Deliberative Process Exemption set out at G.L. c. 4, § 7(26)(d) (‘Exemption (d)’),” the agency wrote in its response. “This exemption applies to inter-agency or intra-agency memoranda or letters relating to policy positions being developed by the agency, in this instance, policy relating to corrections in the Commonwealth. Policy positions being developed by the agency is ongoing and therefore exempt from mandatory disclosure at this time.”
Hanora and other activists insist that they should have access to policy regarding women’s incarceration even as it’s being developed. FJAH is made up of, and works directly with, incarcerated and formerly incarcerated women, the demographic that will be most impacted by state decisions regarding the new prison.
Deliberative process exemptions to public information laws have garnered controversy across the nation, not just in Massachusetts.
In 2019, for example, the Sierra Club challenged the use of a deliberative process exemption to the federal Freedom of Information Act in a case that made it all the way to the Supreme Court. In May 2021, the court’s justices ruled in favor of the exemption, saying that “facilitating agency candor in exercising its expertise in preliminary agency deliberations” can outweigh “transparency and accountability concerns.” Justice Amy Coney Barrett wrote the opinion, her first since joining the court.
The Sierra Club’s case was the first time that FOIA exemption had been addressed by the court in 20 years. Advocacy organizations like the American Civil Liberties Union, which filed an amicus brief in the case, were hopeful the court would strengthen FOIA, but its ruling further blurred the lines. According to the Yale Journal of Regulation, the decision “furthers government secrecy.”
Elsewhere, in Tennessee, Republican Gov. Bill Lee has drawn scrutiny for using that state’s deliberative process exemption frequently since 2019 to deny records to journalists and state representatives.
The use of the exemption here in Massachusetts raises concerns about government transparency on a costly and beleaguered project. And it’s not the first time that opponents of the project have raised alarms about DCAMM and DOC failing to meet legal obligations around communicating with the public. The project has been shrouded in secrecy since the state failed to properly advertise its first request for proposals in 2019. That initial proposal and a second were withdrawn after administrative challenges citing improper procedures were filed with the Massachusetts Attorney General Office’s Bid Unit during Healey’s tenure as attorney general.
“This is typical of the DOC,” Hanora said. “Redacting notes about the new women’s prison project is just another example of how this rogue agency avoids accountability and the rest of the executive branch lets it happen.”
Hanora said that incarcerated and formerly incarcerated women have been clear that there is “no such thing as a safe or trauma-informed prison,” despite what the DOC claims they hope to build.
“People are demanding that the state does something different and better for women than yet another prison where DOC’s abuse and medical neglect will certainly continue,” she added.
Sierra Dickey is a writer and educator living in Gill. Find her on Twitter @dierrasickey.
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