Joseph P. Schmitt v. Department of Correction - Legal Division (SPR 20202443)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 22, 2020 SPR20/2443 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 Joseph P. Schmitt 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. Schmitt requested a copy of a certain treatment center policy. Unsatisfied with the Department’s response, Mr. Schmitt petitioned this office and SPR20/2443 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 responses In a November 16, 2020 response, the Department asserted, “[p]lease be advised it is the Treatment Center's policy that if you receive a D-Report or OBR you are terminated from employment. You can be placed back on the list to receive another job.” On November 18, 2020, 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 SPR20/2443 Page 2 December 22, 2020 the Department provided the following response: “Please be advised you may look up the policy in the Law Library.” Current Appeal Mr. Schmitt indicated in his appeal that the Department did not provide the requested policy. Mr. Schmitt stated that “…I did go to the library and could not locate any specific CMR that permits MTC staff to override an OBR sanction, and add a loss of job sanction … I … make a public records request … for a copy of the policy …” Based on Mr. Schmitt’s appeal, I find the Department must confirm if it possesses the requested policy. 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). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). . Conclusion Accordingly, the Department is ordered to provide Mr. Schmitt with a response to the request provided in a manner consistent with this order, the Public Records Law and its Regulations within 10 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. Murray Supervisor of Records cc: Joseph P. Schmitt