John Diaz v. Department of Correction - Legal Division (SPR 20200939)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 25, 2020 SPR20/0939 Kate M. Silvia Department of Correction 50 Maple Street, Suite 3 Milford MA 01757 Dear Ms. Silvia: I have received the petition of John Diaz appealing the response of Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 3, 2020, Mr. Diaz stated as follows: “For quite some time, I have been attempting to receive an answer to two questions: 1. What are the necessary steps that the Department … Superintendent Special Investigator (S.S.I.) must take to perform a proper investigation, regarding a complaint made by a prison inmate. 2. What are the criteria that the Department …inner perimeter security (I.P.S.) designated person for inmate work/program, security clearances, use in order to grant/rescind an inmate’s security clearance.” Unsatisfied with the response, Mr. Diaz appealed and SPR20/0939 was opened as a result. Previous appeals This request was the subject of a previous appeals. See SPR19/1928 Determination of the Supervisor of Records (September 30, 2019); SPR19/2206 Determination of the Supervisor of Records (November 12, 2019); SPR20/0745 Determination of the Supervisor (May 21, 2020). I closed SPR20/0745 by asking Mr. Diaz to clarify his request. 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 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 SPR20/0939 Page 2 June 25, 2020 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); 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). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See 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 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 of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Conclusion Upon review of the file, it does not appear from his appeal petition that Mr. Diaz is appealing the Department’s response. Consequently, it is unclear what the basis of Mr. Diaz’s appeal is. Mr. Diaz is reminded that all petitions for appeal “shall specifically describe the nature of the requestor's objections to the response or failure to timely respond.” 950 C.M.R. 32.08(1)(f). Please be aware that the request must reasonably describe the records sought. G. L. c. 66, § 10(a)(i). Mr. Diaz may wish to clarify this matter and his objections to the Department’s response. Mr. Diaz is also reminded that an appeal to this office be filed within ninety calendar days of the date of the request letter, or within ninety calendar days of the date of a written response from the record custodian. See 950 C.M.R. 32.08(1)(d); 950 C.M.R. 32.08(1)(e). Sincerely, Rebecca S. Murray Supervisor of Records cc: John Diaz