Moffat, Shane v. Executive Office of Public Safety and Security - Department of Correction (SPR 20140769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 17, 2015 SPR14/769 Mr. Richard C. McFarland, Esq. Department of Correction - Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Attorney McFarland: I have received the petition of Shane Moffat appealing the response of the Department of Correction (Department) to his request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Moffat requested copies of any agreement between the Department and certain agencies that provide what Mr. Moffat called "Federal officer status." In response the Department denied access, citing the investigatory exemption to the Public Records Law. G. L. c. 4, § 7(26)(£). It is unclear from the Department's response whether any responsive records exist. The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10(c); 950 C.M.R. 32.08(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 town 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(c); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added). See also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); see also District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). The Department is advised that to comply with the Public Records Law and its Access Regulations it must provide specificity with respect to any denial of access to public records. This requires a records custodian to not only cite an exemption, but to specifically explain the applicability of the exemption to the requested records. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Mr. Richard C. McFarland, Esq. SPR14/769 Page Two March 17, 2015 The Department's written response failed to meet this burden as it does not indicate whether any responsive records exist. A custodian's superior knowledge of the contents of a governmental entity's files must be used to assist in promptly complying with the request. 950 C.M.R. 32.05(5). Accordingly, the Department is hereby ordered to review its files and determine which responsive records exist and, within ten (10) days ofthis order, provide Mr. Moffat a revised response to his request. Ifthe Department maintains that any portion of responsive records are exempt from disclosure it must provide Mr. Moffat a written explanation, with specificity, how a particular exemption applies to each record, along with a custodi 1 index. See 950 C.M.R. 32.08 (7). This administrative appeal is now closed. illiams cc: Mr. Shane Moffat