Robert Ferris v. Department of Correction - Souza-Baranowski Correctional Center (SPR 20171365)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecc-a S. Murray Supervisor of Records October 5, 2017 SPR17/1365 Vicki Pineda Department of Correction Souza-Baranowski Conectional Center P.O. Box 8000 Shirley, MA 01464 Dear Ms. Pineda: I have received the petition of Robert Fenis appealing the response ofthe Department of Correction (DOC) to his request for public records. G. L. c. 66 § 1 OA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Ferris requested "Incident reports #1604976 and #1604993" and "Photos (4 )." Vicki Pineda, paralegal, denied his request, claiming that the responsive records are "not public and exempt from disclosure pursuant to statute" citing the Criminal Offender Record Information (CORI) Act, G. L. c. 6, § 167, as it operates through Exemption (a) ofthe Public Records Law. G. L. c. 4, § 7(26)(a). The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all govermnental records are public records. G. L. c. 66, § 1O A( 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 pmiion 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, § 1 O(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

Vicki Pineda SPR17/1365 Page 2 October 5, 2017 Purpose of request; identity of requester Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances ofthe requester. See Bougas v. ChiefofPolice ofLexington, 371 Mass. 59,64 (1976). Accordingly, Mr. Ferris's purpose in making the request has no bearing on the public status of any existing responsive records. It should be noted that the discovery process and the Public Records Law are two distinct and independent avenues for gaining access to records. The Massachusetts Supreme Judicial Court has held that while a party's access to records may be limited by the Public Records Law, this may not preclude obtaining the records through discovery. Commonwealth v. Wanis, 426 Mass. 639 (1998). See also 950 C.M.R. 32.08(1)(a) (the administrative appeal process "shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the record through statutory, regulatory, judicial or other applicable means"). As such, Mr. Ferris may wish to consider another means of seeking to obtain any existing responsive records. In its response, the DOC indicates Mr. Ferris is seeking his own CORI and "should contact MCI-Shirley Records Manager Elizabeth Kingman to view the documents, which are filed in [his] 6-part folder." The DOC further indicates that Mr. Ferris "may not have copies of these records as they are marked 'VIEW ONLY Not for inmate retention."' It is unclear if Mr. Ferris has a "unique right of access" to the requested information, which would bar the use of the public records administrative appeal process. Id. The DOC must explain whether there is a means affording Mr. Ferris a "unique right of access" to the requested records and if so, identify the means and explain its applicability. Order Subsequent to the intervention by a staff member of the Public Records Division, I learned that a representative from the DOC intends to provide Mr. Ferris with a supplemental response to his request. Accordingly, I will consider this administrative appeal closed with the proviso that the DOC provides said response 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. Mr. Ferris may appeal the substantive nature of the DOC's response within ninety days. See 950 C.M.R. 32.08(1).

Vicki Pineda SPR17/1365 Page 3 October 5, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Ferris Bradley Sultan, Esq.