Joshua Carrier v. Department of Correction - Treatment Center (SPR 20171351)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca §. Murray Supervisor of Records

October 3, 2017 SPR17/1351

Emily Holmes

Department of Correction

Old Colony Correctional Center Health Services 1 Administration Road

Bridgewater, MA-02324

Dear Ms. Holmes:

[have received the petition of Joshua Carrier appealing the response of the Department of Correction — Old Colony Correctional Center (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on August 31, 2017, Mr. Carrier requested the following two categories of information about the Department’s formulary:

1. A list of all the ‘formulary medications’ for Old Colony Correctional Center inmates for the dates between 08/31/15 to 08/31/17. This is including, but not limited to, all Mental Health and Medical medication;

2. A list of all the ‘non-formulary medications’ for Old Colony Correctional Center inmates for the dates between 08/31/15 to 08/31/17. This is including, but not limited to, all Mental Health and Medical medication.

The Department provided a revised response on September 15, 2017, denying access to the records because it is a “proprietary document.”

Previous appeal

This appeal was the subject of a previous appeal, SPR17/1258 Determination of Supervisor or Records (September 15, 2017). I closed the SPR17/1258 when the Department provided a revised response. Unsatisfied with the Department’s response, Mr. Carrier petitioned this Office and this appeal, SPR17/1351, was opened as a result.

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

Emily Holmes SPR17/1351 Page 2 October 3, 2017

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, § 10(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, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records.

The Department’s September I 5 response

In the Department’s September 15" response, it indicated that this response was “a follow-up to my response to you dated 9/1/17 in which I advised you that the MPCH (OCCC) formulary is not considered a public record and does not fall under the provisions of M. G. L. chapter 66, § 10. Please note that the MPCH Formulary is considered a proprietary document. If you are seeking access to the State Office of Pharmacy Services (SOPS) Formulary, you will need to contact that office directly.” .

The Department is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Accordingly, the Department must explain if there is an agency relationship between the Massachusetts Partnership for Correctional Healthcare and the Department.

Further, the Department cited no exemption under the Public Records Law to withhold the record. The Department is reminded that 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. The Department

Emily Holmes SPR17/1351 Page 3 October 3, 2017

did not claim an exemption in the Public Records Law to withhold the responsive records. I understand a Public Records Division staff attorney contacted your office about this appeal.

Conclusion

Accordingly, whereas the Department has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the Department provide Mr. Carrier 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.

Lelusen

Relieceo S. Murray Supervisor of Records

cc: Joshua Carrier