Eve Carson v. Department of Correction - Legal Division (SPR 20192027)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division

Rebecca S, Murray Supervisor of Records

October 10, 2019 SPR19/2027

Kate Silvia

Director of Communications Massachusetts Department of Correction 50 Maple Street

Milford, MA 01757

| Dear Ms. Silvia:

I have received a petition from Eve Carson appealing the denial of the Massachusetts Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, Ms. Carson requested inmate personal property records. The Department provided a response to Ms. Carson on September 25, 2019. This office received an email from Ms. Carson on September 29, 2019 requesting an appeal.

The Public Records Law

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, § 10(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, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response.

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, § 10(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).

Appeal

The Department’s September 25" response to Ms. Carson cited to C.M.R. 403.20

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 : | SPR19/2027 Page 2 . October 10, 2019

concerning Inmate Property. The Department explained to Ms. Carson that the “the records that you seek are not public records, rather the personal property of a deceased individual.” The Department further asserts that “[iJn order for the requested property to be released, you must provide proof that you are the administrator or executor of the deceased's estate.”

It is unclear what exemption the Department cited when withholding documents. If the Department intends to withhold documents pursuant to the Public Records Law, an exemption must be provided. See G. L. c. 66, § 10(b)(iv) (custodian has the burden of establishing the applicability of an exemption and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based).

Accordingly, the Department is ordered to review the requests made by Ms. Carson and provide 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, ca Mais, ,

Supervisor of Records

cc: Eve Carson