Shane Moffat v. Executive Office of Public Safety and Security - Department of Correction (SPR 20160366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 8, 2016 SPR16/366 Ms. Kimberly Lincoln Susan-Baranowski Correctional Center P. 0. Box 8000 Shirley, MA 01464 Dear Ms. Lincoln: 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 § 1 O(b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Moffat requested copies ofrecords related to what he calls the "Security Threat Group Derailment Program". In a response dated May 16,2016 the Department provided Mr. Moffat a copy of a Program Application Form with certain portions redacted. The Department further indicated that it cannot provide any further information regarding the program, as it was facilitated by a volunteer. 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). 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 response by the Department did not contain the specificity required in a denial of access to public records. Accordingly, Department is advised that to comply with the Public Records Law and 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 each of the requested records. Although the Department provided Mr. Moffat with copy of a Program Application Form with certain portions redacted, it is unclear if the Department possesses any other records responsive to his request. See 950 C.M.R. 32.03 (defining "custodian" as the government employee who in the normal course of his/her duties has access to or control over records). Additionally, the Department failed to claim any exemption to the Public Records Law OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Kimberly Lincoln SPR16/366 Page2 June 8, 2016 for withholding the redacted portions of the record it did provide to Mr. Moffat. 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). I find the Department has failed to respond to a request for public records. Accordingly, the Department is hereby ordered to provide Moffat with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations. The Department is ordered to do a full and thorough search of its records, identify and provide any and all records responsive to Mr. Moffat's request, if the Department intends to withhold any of the responsive records the Department must provide Mr. Moffat with a detailed explanation with specificity, how a particular exemption applies to each withheld record or portion thereof. 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, § 10(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 ($1 0. 00), custodian of records shall provide written good faith estimate). Once the fees are paid, you must provide the responsive records. To assist in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is 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 of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon reque Please contact my office directly at the telephone number provided in this determi tion fo her information. n Supervisor ofRecords cc: Mr. Shane Moffat