Robert Aldrich v. Department of Correction - Legal Division (SPR 20190881)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 15, 2019 SPR19/881 Kate M. Silvia, Esq. Department of Correction Legal Division 70 Franklin Street Boston, MA 02110 Dear Attorney Silvia: I have received the petition of Robert Aldrich 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). On March 26, 2019, Mr. Aldrich requested a copy of the Department's statistical information as it pertains to habitual offender sentences before and after the enactment of Truth in Sentencing in 1994. Specifically: 1. Did the Dept. of Correction apply statutory good conduct credits (G. L. c. 127, § 129) to habitual offender "numbered" sentences prior to 1994? 2. Does the Dept. of Correction currently approve and apply statutory good conduct credits (G. L. c. 127, § 129) to eligible sentences for prisoners who were sentenced prior to 1994? 3. Was the 103 CMR 410 Sentence Computation regulation in effect from 2017 to 2019? If so, please provide me with a certified copy of 103 CMR 410, 2017 version; 4. Was the 103 CMR 411 Deduction [f]rom Sentence regulation in effect from 2004 to 2019? If so, please provide me with a certified copy of 103 CMR 41 [ 1], 2004 version; 5. Has the Dept. of Correction the forfeiture and/or the restoration of statutory good conduct credit (G. L. c. 127, § 129) between 1994to 201 9? If so, how many prisoners between 1994 to 2019 were subject to either forfeiture or restoration of statutory good conduct credits ( G. L. c. 12 7, § 129)? 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 SPR19/881 Page 2 May 15, 2019 6. How many prisoners currently held in the custody of the Dept. of Correction were sentenced as habitual offenders between 1994 and 2012? 7. How many prisoners currently servicing habitual offender sentences do not receive statutory good conduct credits (G. L. c. 127, § 129)? And, 8. How many prisoners who are/were serving habitual offender sentences between 1994 and 2012 have been awarded statutory good conduct credits (G. L. c. 127, § 129)?" In addition, in his March 26th request, Mr. Aldrich states, "[a]lso, please provide me with a compilation of sentencing data compiled by the [Department] for the period oftime from 1990 to 2018, inclusive." The Department's April 24, 2019 response In its April 24th response, the Department provided Mr. Aldrich with records responsive to his Requests Numbered 2, 3 and 4. Regarding Mr. Aldrich's Requests Numbered 1, 5, 6, 7 and 8, the Department states, "Please be advised that any response to your request would require the creation of a new record. A Massachusetts agency is not required to create records or to synthesize data in order to respond to a public record request." Additionally, the Department responded to Mr. Aldrich's request for compilation of sentencing data. It states, "[t]here are no "compilation of sentencing data compiled by the [Department] for the period oftime from 1990 to 2018, inclusive." Please be advised that the Department is not required to create records or synthesize data in order to respond to a public record request."' As a result of the Department's response, Mr. Aldrich petitioned the Supervisor of Records (Supervisor), and this appeal was opened. Under the Public Records Law, an agency is not required to create a record in response to a public records request. G. L. c. 66, § 6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § IO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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. 4, § 7(26). It is unclear whether the Department has data or information that may be responsive to portions of Mr. Aldrich's request, such as information held in a computerized system or database that is responsive to Mr. Aldrich's questions. Please note that under the Public Records Law, "furnishing a segregable portion of a public record shall not be deemed to be creation of a new record. This applies to a responsive record in the form of an extract of existing data, as such data

Kate M. Sil via SPR19/881 Page 3 May 15, 2019 exists at the time of the request and is segregable from nonresponsive and exempt data." 950 C.M.R. 32.07(1)(f). In his petition, Mr. Aldrich states, "I did not request to be provided with a 'new record,' Clearly the DOC already compiled and published such information in their annual reports to the Governor, Legislature, and the Criminal Justice Information System, including the Executive Office of Public Safety and Security." He further alleges, "the DOC installed a computerized system called the 'Inmate Management System (IMS),' which computerized system has a data base which records, stores, calculates, compiles, and produces tabular, spreadsheets, and other forms reports, charts, and data as features integrated in the IMS computerized system. Thus, virtually all sentencing information is recorded and entered into the IMS system and is routinely compiled for DOC purposes." In a May 14th telephone conversation, you indicated that the Department will provide a further response to clarify whether it has a database or other record system that can be utilized to extract the information Mr. Aldrich requested. It is my understanding that you also informed this office that the Department is in active litigation filed by Mr. Aldrich against the Department. Order Accordingly, the Department is ordered to provide Mr. Aldrich with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. M ~ Supervisor of Records cc: Robert Aldrich Janice I. Hebert, Director; Central Data Computation Unit