William Murray v. Executive Office of Public Safety and Security - Department of Correction (SPR 20170039)

The Commonwealth of Massachusetts William Francis Galvin, Secretary ofthe Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 12, 2017 SPR17/039 Jennifer J. Markham Director of Classification Department of Correction Executive Office of Public Safety and Security MCI- Cedar Junction at Walpole 2405 Main Street P.O. Box 100 South Walpole, MA 02071 Dear Ms. Markham: I have received the petition of William Murray appealing the response of the Executive Office of Public Safety and Security- Department of Correction (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Murray requested two (2) categories of records, including "memos" by Department staff as well as a copy of a report currently being handled by a specifically identified individual. Ms. Jennifer Markham, Director of Classification, denied his request, claiming that the responsive records either did not exist, or that she was still in the process of producing a response. Mr. Murray appealed this office for three (3) reasons. · Mr. Murray's first reason for appeal is in his claim that he does not have access to the Department's "Intranet" server, therefore he is unable to access the site to obtain information that he is seeking. All employees of the Department have access to it's "Intranet," however some employees may not know how to access it from their personal computers outside of the office. After speaking with Ms. Markham, it has been made clear that Mr. Murray does in fact have access to the "Intranet", and may access it at any time via his personal computer. He is welcome to request further assistance from the Department if he continues having trouble accessing it from home. Mr. Murray's second reason for appeal is in the denial of his request for specific "memos." After speaking to Ms. Markham, it has been made clear that there is no record, anywhere, of these memos and this has been explained to Mr. Murray on three (3) occasions prior to this determination. Ms. Markham has searched extensively throughout the Department, including the entirety of "Cedar Junction" as well as the Human Resources Personnel Department, and there is no evidence anywhere that these specific memos exist. Please note, One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Jennifer J. Markham SPR17/039 Page 2 January 12, 2017 according to Public Records Law, a custodian does not have the duty of creating responsive records where none currently exist. There is a presumption that all government employees perform their duties in an honest and impartial manner. Additionally, there is a presumption that public officials perform their duties in an honest and impartial manner. LaPointe v. License Bd. of Worcester, 389 Mass. 454,459 (1983); see also Konover Mgt.Com. v. Planning Bd. of Auburn, 32 Mass. App. Ct. 319, 326 (1992) (presumption that public officials will perform honestly and impartially). The third and final reason Mr. Murray appealed with this office is because he is still not in receipt of his final request, which was for a report being handled by a specifically identified member of the Department. After speaking with Ms. Markham, it has been made apparent that this report is not only classified, but it is also still being used as part of an investigation. In order to properly deny Mr. Murray access to this record, Ms. Markham has been working extensively with the Department's legal team to abide by the Public Records Law to cite and apply certain exemptions to this request. Please be made aware that the Department is working as quickly as possible to provide Mr. Murray with a response, and hopes to issue one next week. After a member of my staff spoke with Ms. Markham on this appeal and these three (3) points of contention, it has been made apparent that the Department is doing their due diligence to fully comply with Mr. Murray's request(s). The Department has previously issued three (3) responses to Mr. Murray concerning the same requests with the same answers reiterated in this determination. Whereas this matter was opened based upon the Department's failure to provide a written response, I will now consider this administrative appeal closed. Mr. Murray may appeal the substantive nature of the Department's response to his third request, for the classified report, within ninety (90) days. See 950 C.M.R. 32.08(1). 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. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: William Murray