Anthony Leo v. Department of Correction - Legal Division (SPR 20190096)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 30, 2019 SPR19/096 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition from Anthony Leo appealing the response from the Department of Correction (Department) regarding a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Mr. Leo sent a request to the Department on December 17, 2018 requesting a copy of a contract the Department has with "Correct Care Solutions to provide sex offender treatment to people under its authority." The Department provided a response on December 20, 2018 to Mr. Leo. In a letter sent on January 3, 2019, Mr. Leo made an appeal to this office stating the information provided to him was not contract and requested "a copy of the contract (official legal document) it has with Correct Care Solutions." Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § lO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § IO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § 1O (b )(iii). 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) (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 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

Ms. Kate Silvia SPR19/096 Pg. 2 January 30, 2019 exemption or exemptions upon which the withholding is based ... "); 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). It is unclear if the Department possesses the contract requested by Mr. Leo. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). 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 of records at the time of the request. See G. L. c. 66, § 10(a )(ii), (b )(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b) (iii). If the records are within the Department's possession and they intend to withhold the documents an exemption must be provided as stated above. See G. L. c. 66, § 1O (b )(iv) ( custodian has the burden of establishing the applicability of an exemption). Accordingly, the Department is ordered to review the requests made by Mr. Leo and provide, if any, requested records in accordance with the Public Records Law, its Access Regulations and this order 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: Anthony Leo