Alyssa Wittkowski v. Department of Correction - Legal Division (SPR 20180572)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 10, 2018 SPR18/572 Kate M. Silvia Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Alyssa Wittkowski 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, on February 15, 2018, Ms. Wittkowski requested various records related to an identified individual. On March 1, 2018, the Department responded to her request, claiming that the responsive records are exempt from disclosure pursuant to the Criminal Offender Record Information (CORI) Act. 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 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 SPR18/572 Page 2 May 10, 2018 Compliance with the requirements ofp roviding a response; specificity On March 1st the Department provided a response to Ms. Wittkowski's February 15th request. The response indicates that "although [Ms. Wittkowski] describe[s] this as a public records request which seeks investigative materials, incident reports and grievances, it is actually seeking Criminal Offender Record Information (CORI). CORI is not public and is exempt from disclosure pursuant to statute." The Department further indicates that it "require[s] a CORI release prior to disclosure of any of the requested documents." Additionally, the response states that "there are no responsive records to request number two as this information is not tracked." 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 ofrecords or portions ofrecords 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 ofrecords, or portions ofrecords 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 SPR18/572 Page 3 May 10, 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, § lO(b ). Despite the Department's March 1st 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 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, § 10( a)(ii). Additionally, the Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 1O (b )(iv)(e mphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department's response did not contain the specificity required in a denial of access to public records. Instead, the Department's response merely cites the CORI Act without claiming an exemption under the Public Records Law or providing any further explanation as to the CORI Act's applicability to the requested records. The Department is not permitted to issue a blanket denial without providing any further information with respect to the requested records. As a result, I find that the Department failed to satisfy its burden in responding to this records request. The Department is advised that a records custodian is required to not only cite a statute, but claim an exemption and specifically explain the applicability of the exemption to the requested records in order to comply with the Public Records Law and its Access Regulations. I understand a member of the Public Records Division staff contacted your office about this matter. Order Accordingly, the Department is ordered to provide Ms. Wittkowski 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.

Kate M. Silvia SPR18/572 Page 4 May 10, 2018 Sincerely, Rebecca S. Murray Supervisor of Records cc: Alyssa Wittkowski