John D. Rousseau v. Department of Correction - Legal Division (SPR 20180426)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April17, 2018 SPR18/426 Kate M. Silvia Department of Correction 50 Maples Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of John Rousseau 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, Mr. Rousseau requested a "disciplinary file for [an identified individual]" and "the status of [an identified] investigation." The Department denied his request, claiming that the responsive record is exempt from disclosure pursuant to Exemption (c) of the Public Records Law. G. L. c. 4, § 7(26)(c). 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, § 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

Kate M. Silvia SPR18/426 Page 2 April 17, 2018 Compliance with the requirements ofp roviding a response On March 2nd the Department provided a response to Mr. Rousseau's February 22nd request. The response indicates that "[t]he Department objects to [Mr. Rousseau's] request, and will not be providing [Mr. Rousseau] with any documents because, if any responsive documents existed, said documents would be exempt from production under the Privacy Exemption, M.G.L. c. 4 § 7(26)(c). Disciplinary records are records contained within an employee's personnel file and are used in making employment decisions. As such, they relate to an identifiable individual and are sufficiently personal to be exempt from disclosure pursuant to M.G.L. c. 4 § 7(26)(c)." Although the Department provided an initial response within ten business days, the response did not otherwise comply with the Public Records Law. Pursuant to the Public Records Law, a records access officer's (RAO) written response must not only be provided within ten business days, but must also comply with the criteria listed in the statute. The written response shall be made via first class or electronic mail and shall: (i) confirm receipt of the request; (ii) identify any public records or categories of public records sought that are not within the possession, custody, or control of the agency or municipality that the records access officer serves; (iii) identify the agency or municipality that may be in possession, custody or control of the public record sought, if known; (iv) identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based, provided that nothing in the written response shall limit an agency's or municipality's ability to redact or withhold information in accordance with state or federal law; (v) identify any public records, categories of records, or portions of records that the agency or municipality intends to produce, and provide a detailed statement describing why the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality and therefore requires additional time to produce the public records sought; (vi) identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein; (vii) suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency or municipality to produce records sought more efficiently and affordably; (viii) include an itemized, good faith estimate of any fees that may be charged to produce

Kate M. Silvia SPR18/426 Page 3 April17, 2018 the records; and (ix) include a statement informing the requestor of the right of appeal to the supervisor of records under subsection (a) of section 1O A and the right to seek judicial review of an unfavorable decision by commencing a civil action in the superior court under subsection (c) of section 1O A. G. L. c. 66, § 10(b). Despite the Department's March 2nd response, it remains unclear how the Department complied with the criteria required by an RAO in providing a response to a public records request. See id. Based on its response, it is uncertain whether the Department possesses records responsive to the request. The duty to comply with requests fot 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, § 10(a)(ii). I understand a member of the Public Records Division staff contacted your office about this matter. Order Accordingly, the Department is ordered to provide Mr. Rousseau 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, ~~ Supervisor of Records cc: John D. Rousseau