Robert W. Anderson, Jr. v. Department of Correction - Legal Division (SPR 20200769)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 21, 2020 SPR20/0769 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Robert Anderson appealing the response of the 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, Mr. Anderson requested: 1. Any and all memorandums, communications and/or e-mails issued to correctional staff, administrators and/or inmates concerning the Coronavirus Outbreak/COVID-19 (to include orders to staff) dated from March 1, 2020 to the present, from Commissioner Mici; 2. Any and all Memorandums, communications and/or e-mails issued to correctional staff, administrators and/or inmates concerning the Coronavirus Outbreak/COVID-19 (to include Orders to Staff) dated from March 1, 2020 to the present from Superintendent Thibault; and 3. Most recent version of the [Department] Religious Services Handbook. In an April 22, 2020 response, the Department provided records responsive to Mr. Anderson’s Requests 1, 2 and 3; except, his request for email records. The Department informed Mr. Anderson that it will provide him with a fee estimate to comply with his request for emails responsive to his Requests 1 and 2. Unsatisfied with the Department’s response, Mr. Anderson petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In his petition, Mr. Anderson asserts that he was not provided with all the “memoranda” responsive to his Requests 1 and 2, and that the Department should not charge him any fees for the email records. 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 Silvia SPR20/0769 Page 2 May 21, 2020 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, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical 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, § 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). Fee estimate – agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); 950 C.M.R. 32.06(4). Waiver of fees In his petition, Mr. Anderson contends he is entitled to a waiver of fees because the requested email records are in the public interest, the Department previously provided him with emails without charging a fee, and he has a legitimate need for the emails since he filed a

Kate Silvia SPR20/0769 Page 3 May 21, 2020 grievance against the facility due to the actions of staff. Mr. Anderson also contends that a fee shall not be assessed for the first four (4) hours of work performed, and that the emails should be provided as hardcopies, not electronic versions. A records custodian may waive fees if: “[d]isclosure of a requested record is in the public interest; the request for records is not in the commercial interest of the requestor; or, the requestor lacks the financial ability to pay the full amount of the reasonable fee. See 950 C.M.R. 32.07(2)(k)(l-3). Mr. Anderson is advised that while a record custodian may waive applicable fees, under the criteria in 950 C.M.R. 32.07(2)(k)(l-3), the Supervisor has no authority to order that a records custodian do so. I also note that Mr. Anderson did not provide this office with a copy of the Department’s fee estimate for the emails; therefore, I am unable to render a decision on any fees that he may have been charged. It is also unclear whether the Department provided Mr. Anderson with a fee estimate for the emails, as discussed in its April 22, 2020 response. The Department must clarify this issue. Additional responsive records It is Mr. Anderson’s contention that the Department did not provide him with all the Memorandums issued to the staff and inmates of MCI Shirley dated March 27, April 1 and April 3, 2020. He states, “[s]aid Memorandums to inmates were posted on the appellant’s [h]ousing [u]nit at MCI-S; thus, there is no question that they were produced by MADOC for distribution.” See Mr. Anderson’s Requests 1 and 2. The Department must clarify whether it has additional responsive records in its possession. Conclusion Accordingly, the Department is ordered to provide Mr. Anderson with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations as soon as practicable. 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: Robert Anderson