Robert W. Anderson, Jr. v. Department of Correction - Legal Division (SPR 20170897)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 17, 2017 SPR17/897 Kate Silvia Director of Public Records Department of Corrections 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Robert W. Anderson, Jr. appealing the response ofthe Department of Correction (Department) to a request for public records. G. L. c. 66 § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Anderson requested thirty five categories of records related to the Department as well as identified correctional institutes. The Department responded with a letter dated June 19, 2017 and Mr. Anderson appealed. 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, § 10A(d); 950 C.M.R. 32.03(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, § 1O (b )(iv); 950 C.M.R. 32.06(3); see also Dist. 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 (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

Kate Silvia· SPR17/897 Page 2 July 17, 2017 The Department's June 19th response In the Department's June 19th response you indicate the Department does not possess certain categories of responsive records. Please note that under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § lO(a)(ii). In addition, the Department explains it intends to withhold specific records under Exemptions (a), (b) and (n) ofthe Public Records Law. G. L. c. 4, § 7(26)(a), (b), (n); see also G. L. c. 6, § 167. Provision ofr ecords The Department provided Mr. Anderson with records related to grievance statistics and suicide data. In correspondence to this office dated July 12, 2017, Mr. Anderson is "challenging the accuracy of both the record concerning Inmate Suicides: 2006 to Present and the other which is supposed to provide Statistical Data for MCI Shirley Grievances from 1 January 2017 to 19 June 2017." The Department must explain whether it possesses any additional responsive records or information regarding these categories of records. See G. L. c. 66, § lO(a)(ii)(the duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian of records at the time ofthe request). Fee estimate The Department also provides a fee estimate of $65.55 for the provision of records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § lO(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § lO(d)(i). Agencies may not assess a fee for the first four hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10 ( d)(ii). Where appropriate, agencies may include as part of the. fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10 ( d)(ii); 950 CMR 32.06(4). The Department's fee estimate is comprised of $15.55 for 311 pages of black and white copies at $.05 per page, as well as $50.00 for employee time. You indicate "[e ]xcluding the first four hours, the time necessary for staff to compile, segregate, redact, and reproduce the records is

Kate Silvia SPR17/897 Page 3 July 17, 2017 at least 2 hours, at a rate of $25.00 per hour at the statutorily capped rate of $25 per hour." You note that the lowest paid employee capable of performing this task is paid at a rate higher than $25 per hour. As indicated above, the Department cannot assess a fee for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10 ( d)(iv). See G. L. c. 66, § 10 ( d)(ii); 950 CMR 32.06(4 ). To the best of my knowledge, the Department has not submitted a petition under G. L. c. 66, § 10(d)(iv). Please note that petitions seeking permission to assess fees must be made within ten business days after receipt of a request for public records; therefore, the Department may not currently seek permission to assess fees through a petition under G. L. c. 66, § 10(d)(iv). See 950 CMR 32.06(4)(g). If the Department intends to assess a fee for time spent segregating or redacting for the production of records responsive to Mr. Anderson's request, it must explain how segregation or redaction is required by law. I understand a Public Records Division staff attorney contacted you regarding this matter and provided a copy of the file associated with this appeal. Conclusion Accordingly, the Department is hereby ordered to provide Mr. Anderson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten business days. 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert W. Anderson, Jr.