Maya Shaffer v. Department of Correction - Legal Division (SPR 20171609)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 29, 2017 SPR17/1609 Stephanie Y. Collins Assistant Deputy Commissioner of Clinical Services Department of Correction 50 Maple Street, Suite 3 Milford, MA O1 7 57 Dear Ms. Collins: I have received the petition of Maya Shaffer of Critical MA appealing the response of the 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, Ms. Shaffer requested "[a]ll quarterly reports generated under policy 652.07" from 2013 to present, "[a]ll written determinations under 3 of policy 652.08" from 2013 to present (Ms. Shaffer asks that the names of the inmates be omitted); and "[a]ll complaints of sexual abuse filed by inmates being held in facilities that do not match their gender identities (as defined by MGL https://malegislature.gov/Laws/GeneralLaws/PartI/TitleI/ Chapter4/Section7 )." The Department responded on November 7, 2017 by providing records responsive to request 2. With respect to request 1, the Department directed Ms. Shaffer to the MA Partnership for Correctional Healthcare (MPCH) for responsive records. The Department asserts it does not track information responsive to request 3. 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, § lOA(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, § lO(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 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

Stephanie Y. Collins SPRl 7/1609 Page 2 November 29, 2017 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's November fh response ih In its November response, the Department indicates that with respect to request 1, the "[q ]uarterly reports required by policy 652.07 are generated and maintained by the MA Partnership for Correctional Healthcare (MPCH), the contracted healthcare vendor. Your request for these reports will have to be filed with them directly." Ms. Shaffer objects to this response and asks this office to "order their RAO to compel any third party contractors holding responsive records to turn over the records to the RAO to be turned over to me." Please be 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 Comm. 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). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. The Department must clarify the nature of its relationship with MPCH and, to the extent that an agency relationship exists as described above, the Department must provide records or a response in accordance with the Public Records Law and its Regulations. With respect to request 3, the Department asserts "[y]our last request is for all complaints of sexual abuse filed by inmates being held in facilities that do not match their gender identities. This information is not tracked by this office and thus is not available for production." However, in her appeal petition, Ms. Shaffer indicates that "[t]he records sought could be provided by the RAO if they search the records of trans gender inmates being held in facilities that do not match their gender identity and providing any reports of sexual assault (minus all exempt information of course)." The Department must clarify whether it possesses any responsive records after searching for them in the manner described in Ms. Shaffer's appeal petition. 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 ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). I understand a Public Records Division staff attorney contacted your office about this matter and that your office was copied on Ms. Shaffer's appeal. Conclusion Accordingly, the Department is ordered to provide Ms. Shaffer with a response to the

Stephanie Y. Collins SPRl 7/1609 Page 3 November 29, 2017 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: Maya Shaffer