Ernest Mack v. Executive Office of Public Safety and Security - Department of Correction (SPR 20160800)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords October 18,2016 SPR16/800 Ms. Stephanie Collins Assistant Deputy Commissioner of Clinical Services Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Collins: I have received the petition of Ernest Mack appealing the response of the Department of Corrections (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, on January 19, 2016 Mr. Mack requested a number of records in regards to the nurses working at the facility for last three (3) years, their sign in sheets, complaints made about a particular nurse, and information that the nurse provided to prison officials. Previous appeal This request was the subject of a previous appeal. See SPR16/085 Determination of the Supervisor of Records (March 4, 2016). I closed the March 4 determination with the proviso that the Department provide a written response to Mr. Mack. Subsequently, Mr. Mack informed this office that he seeks further action with respect to this matter. This appeal (SPR16/800) was opened as a result. 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, § 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). Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Stephanie Collins SPR16/800 Page2 October 18, 2016 10(b); 950 C.M.R. 32.05. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. 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). 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 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 fees are paid, a records custodian 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 request. Please contact my office directly at the telephone number provided in this determination for further information. Current appeal I understand Mr. Mack submitted a request dated January 27, 2016 to the Department's Division of Human Resources (Department). The Department responded to this request in a letter dated February 9, 2016. Although similar to his January 27 request to the Department, this current appeal appears to be related to Mr. Mack's January 19 request. It should be noted that the January 19 request was made to Arun Verma whom Mr. Mack identifies as the "Hospital Service Administrator." In Mr. Mack's most recent correspondence to this office, he requests this office conduct an in camera inspection of the responsive records to determine whether an exemption applies. However, it remains unclear whether the Department responded to Mr. Mack in accordance with my March 4 order. The Department must confirm whether it provided a response to the January 19 request and March 4 order. The Department must indicate whether it possesses any responsive records. It is important to note that a public employee is not required to answer questions, or do research,

Ms. Stephanie Collins SPR16/800 Page 3 October 18, 2016 or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Also, if the Department intends to withhold any responsive records, it must explain with specificity how an exemption applies. See Flatley, 419 Mass. at 511 (1995) (custodian has the burden of establishing the applicability of an exemption). I understand an attorney on my staff contacted your office about this appeal and the Department will provide a supplemental response to Mr. Mack that addresses the issues discussed above. Conclusion Accordingly, I will consider this appeal closed with the proviso that the Department provide Mr. Mack with a response to the January 19 request and March 4 order, prepared in a manner consistent with this order, the Public Records Law and its Regulations. 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. Supervisor of Records cc: Mr. Ernest Mack