Karina Wilkinson v. Suffolk County Sheriff's Department (SPR 20182061)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 4, 2019 SPRlS/2061 Maria F. Romero, Esq. Suffolk County Sheriffs Department 132 Portland Street Boston, MA 02114 Dear Attorney Romero: I have received the petition of Karina Wilkinson appealing the response of the Suffolk County Sheriffs Department (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, on December 10, 2018, Ms. Wilkinson requested " ... documents including any request for bids, including any Request for Proposals, RFPs or RFQs, for a new inmate calling service contract for correctional facilities in Suffolk county .... " Ms. Wilkinson also requested "documents showing the amount of revenue paid to the county by ICS provider for each month from and including March 2018 to the present, including any 'Call Commission Reports." The Department provided a response on December 17, 2018, denying access to responsive records pursuant to Exemption (h) of the Public Records Law and indicating that it does not have records responsive to the second request. G. L. c. 4, § 7(26)(h). Unsatisfied with the Department's response, Ms. Wilkinson petitioned this office and this appeal, SPR 18/2061, was opened as a result. Petitions to the Supervisor of Records Ms. Wilkinson is reminded that when appealing to the Supervisor of Records, the requestor "shall provide to the Supervisor complete copies of all correspondence associated with the petition, including: a complete copy of the letter by which the request was made, including in the case of electronic communications all header information indicating time, date, subject, sender and recipient email addresses ..." 950 C.M.R. 32.08(1)(g). 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 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

Maria F. Romero, Esq. SPR18/2061 Page 2 January 4, 2019 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, § lO(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 December 1 fh response In its December 17, 2018 response, the Department cites the language of Exemption (h) and indicates that the documents are exempt from disclosure. The Department also indicates that it does not possess any documents responsive to the second request. Exemption (h) Exemption (h) permits the withholding of: proposals and bids to enter into any contract or agreement until the time for the opening of bids in the case of proposals or bids to be opened publicly, and until the time for the receipt of bids or proposals has expired in all other cases; and inter-agency or intra-agency communications made in connection with an evaluation process for reviewing bids or proposals, prior to a decision to enter into negotiations with or to award a contract to, a particular person G. L. c. 4, § 7(26)(h). Exemption (h) serves to protect the integrity of the bidding procedure by keeping all bidders and potential bidders on equal footing. See Datatrol Inc. v. State Purchasing Agent, 379 Mass. 679, 691 (1980) (the purposes of competitive bidding go beyond economy and efficient administration to the prevention of favoritism in the awarding of government contracts). Competitive bidding ensures full publicity as to the contract and encourages the guarding of the public welfare. Id. at 699. Although the competitive bidding process does not have the advantages of more flexible purchasing policies, the Legislature has mandated the process to foster honesty and accountability in government. Id. at 701.

Maria F. Romero, Esq. SPR18/2061 Page 3 January 4, 2019 Burden of Specificity; segregable portions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "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 ... "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not identify the records, categories of records or portions of records in its possession that it intends to withhold from disclosure. To deny access to a record under the Public Records Law, a records access officer must identify the record, categories of records, or portions of the record it intends to withhold. G. L. c. 66, § lO(b)(iv); see also 950 C.M.R. 32.06(3)(c )( 4). Consequently, the Department must identify any records, categories ofrecords or portions of records it is withholding under Exemption (h). Further, the Department's initial response did not contain the specificity required in a denial of access to public records. The Department does not offer any specific explanation as to how Exemption (h) applies to withhold responsive records from disclosure. Instead, the Department merely cites Exemption (h) without any further explanation as to the exemption'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. Also, I find the Department did not meet its burden of demonstrating how the responsive records, in their entirety, are exempt from disclosure. See Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Any non-exempt, segregable portion of a public record is subject to mandatory disclosure. G. L. c. 66, § 1O (a). The Department must explain why segregable portions cannot be disclosed. No duty to create records Under the Public Records Law, the Department is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian ofrecords at the time of the request. See G. L. c. 4, § 7(26). Whereas the Department explains it does not possess records responsive to the second request, I find that Ms. Wilkinson's appeal pertaining to that request has been resolved. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Given that the Department did not meet its burden to explain how an exemption applies to the records, the requested records may not be withheld. Accordingly, the Department is

Maria F. Romero, Esq. SPRIS/2061 Page 4 January 4, 2019 ordered to review the responsive records, redact where necessary and provide Ms. Wilkinson with the requested records, 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. The Department may file a request for reconsideration of this determination within ten business days of the date of this determination letter. Sincerely, Rebecca S. Murray Supervisor of Records cc: Karina Wilkinson