Herbert Andrews v. Department of Correction - Legal Division (SPR 20190984)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords June 4, 2019 SPR19/0984 Carol A. Colby, Esq. Labor Counsel Dept. of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02210 Dear Attorney Colby: I have received the petition of Herbert Andrews 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). Mr. Andrews sent a request to the Department requesting copies of CCS Dental Protocol. The Department provided a response to Mr. Andrews. In a letter this office received on May 20, 2019, Mr. Andrews appealed the Department's response. 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 of receipt 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, § 1 O(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, § lO(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, § lO(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 ... "); 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). 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

Carol A. Colby, Esq. SPR19/0984 Pg.2 June 4, 2019 Public records; agency relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 1O (a); see also Reinstein v. Police Comm'r of Boston, 378 Mass. 281, 289-90 (1979). The Department sent a letter to Mr. Andrews on May 7, 2019 explaining that he is "likely looking for the Wellpath clinical guidelines and/or policies and procedures related to provision of dental care. Please be advised the Contract Office is not the custodian of any responsive records. I suggest you direct this request to Wellpath, LLC." Where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea, 421 Mass. at 607 (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Consequently, based on the Department's response it is unclear whether there is an agency relationship between the Department and Wellpath. As such, I find the Department must provide additional information regarding the relationship between it and Wellpath in order to determine whether it has met its burden under G. L. c. 66, § 1O (a)(ii) to provide records that are in the possession, custody, or control of the custodian ofrecords at the time of the request. Conclusion Accordingly, the Department is ordered to provide Ms. Andrews 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, Rebecca S. Murray Supervisor of Records cc: Herbert Andrews