Thomas E. Toolan, III v. Office of the Auditor of the Commonwealth (SPR 20202225)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 30, 2020 SPR20/2225 Michael Ruane, Esq. Deputy General Counsel Office of the Auditor of the Commonwealth 1 Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Ruane: I have received the petition of Thomas Toolan, III appealing the response of the Office of the Auditor of the Commonwealth (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on October 1, 2020, Mr. Toolan, III requested the following records: [1] Audits or related documents regarding inmate calling services. [2] Documents related to the commission paid by inmate telephone providers to the Commonwealth or its agencies. [3] Audits or audit-related documents regarding fixed rates approved by the Department of Telecommunications and Cable. [4] Documents detailing the Auditor’s Office contact information for the inmate service providers Global TelLink and Securus. The Office responded on October 19, 2020, indicating it does not possess responsive records. Unsatisfied with the Office’s response, Mr. Toolan, III petitioned this office and this appeal, SPR20/2225, was opened as a result. While this appeal was pending, the Office provided a supplemental response dated November 19, 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). 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

Michael Ruane, Esq. SPR20/2225 Page 2 November 30, 2020 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. 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. The Office’s October 19th and November 19th responses In its October 19, 2020 response, the Office states that it “. . . does not possess or maintain any of the documents you request in your October 2, 2020 [request].” In his appeal petition, Mr. Toolan, III claims “. . . the auditor’s office that audits all Commonwealth departments claims not to have any information regarding the inmate calling companies, Securus or GlobalTelLink. Please know that the inmate phone contractor pays the Commonwealth, through their contract with the department, a $2,000,000 kickback every year. So, the Commonwealth’s auditor of the Department of Correction should have some record of these payments. If not, why not.” In its November 19, 2020 supplemental response, the Office “. . . reiterate[s] that it does not possess records responsive to Mr. Toolan’s public records request.” No duty to create records Under the Public Records Law, the Office is not required to create a record in response to a public records request. 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, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26). Conclusion Accordingly, whereas the Office has confirmed that it does not possess records responsive to the request, I will consider this administrative appeal closed.

Michael Ruane, Esq. SPR20/2225 Page 3 November 30, 2020 Sincerely, Rebecca S. Murray Supervisor of Records cc: Thomas Toolan, III