Henry Martineau v. Department of Correction - Legal Division (SPR 20202312)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 9, 2020 SPR20/2312 Kate M. Silvia Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Ms. Silvia: I have received the petition of Henry Martineau 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. Martineau requested, “[a] copy off all Department of Correction records relating to the Program Engagement Strategy policy implemented and enforced at NCCI-Gardner.” The Department responded and unsatisfied with the response, Mr. Martineau petitioned this office and this appeal SPR20/2312 was opened as a result. 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); 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. The Department’s November 18th response On November 18, 2020, the Department provided the following response: “[t]his responds to your records request dated November 13…Enclosed, please find the 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 SPR20/2312 Page 2 December 9, 2020 responsive to your request.” The documents provided were pages 8 and 20 of the NCCI- Gardener’s orientation handbook, an October 6th email mentioning the PES unit, and a Prisoner’s Legal service of Massachusetts letter on the PES. Current Appeal Mr. Martineau indicated in his appeal that the Department did not provide all documents responsive records to his request. Mr. Martineau stated that “…none of the documents are responsive.” Conclusion As it appears the Department provided the records requested, it is unclear what the basis of Mr. Martineau’s appeal is. Mr. Martineau 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. Martineau may wish to clarify this matter and his objections to the Department’s response. Mr. Martineau is also reminded that an appeal to this office must 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: Henry Martineau