Pugatch, Jason v. Executive Office of Public Safety and Security - Department of Correction (SPR 20150922)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords January 20, 2016 SPRlS/922 Ms. Kristin Cole, Esq. Department of Corrections Legal Division 70 Franklin Street, Suite 600 Boston, MA 0211 0 Dear Attorney Cole: I have received the petition of Jason Pugatch of Shepardgate Films appealing the response of the Department of Corrections (Department) to a December 2, 2015 request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Pugatch requested a copy of a video recording, written reports and statements of participants and witnesses and other documentation, written or electronic, of a July 17, 2000 incident that occurred at MCI-Cedar Junction. In a December 4, 2015 written response the Department stated that "[a]ll requests are denied because [any responsive records] are exempt from disclosure under the Massachusetts Public Records Law. The information requested is Criminal Offender Record Information ("CORI") and Evaluation Information." G. L. c. 6, § 167. Mr. Pugatch appealed. The Department's response failed to inform Mr. Pugatch of the administrative remedy to a denial of access. The Public Records Access Regulations (Regulations) state that a custodian must advise the person denied access ofhis or her remedies. 950 C.M.R. 32.08(1). 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). OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Kristin Cole, Esq. SPR15/922 Page2 January 20, 2016 Subsequent to the opening of this appeal, in a telephone conversation on January 14, 2015, you informed an attorney on my staff that you will review Department records to determine whether any responsive records exist, and provide a revised response. Accordingly, the Department's Legal Division is hereby ordered to review its records and provide a revised written response to Mr. Pugatch, within ten (1 0) days, prepared in a manner consistent with the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Pugatch a written explanation, with specificity, how a particular exemption applies to each record or portions of a record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. If there are any fees associated with this response a written, good faith estimate must be provided. G. L. c. 66, § 1O (a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist the Department in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members ofm staff will visit a records custodian in person to conduct training workshops on the Pubic Records Law upon request. Please contact my office directly at the telephone num r fided in this determination for further information. / t /ly Enclosure cc: Mr. Jason Pugatch