Henry Martineau v. Department of Correction - Legal Division (SPR 20202549)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2021 SPR20/2549 Kate M. Silvia Director of Communication 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.” Unsatisfied with the Department’s response, Mr. Martineau petitioned this office and this appeal, SPR20/2549, was opened as a result. Previous appeal This request was the subject of a previous appeal. See SPR 20/2312 Determination of the Supervisor of Records (December 9, 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); 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 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 SPR20/2549 Page 2 January 6, 2020 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 In its November 18, 2020 response the Department stated, “[t]his responds to your records request dated November 13…Enclosed, please find the records responsive to your request.” 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 “…the Department did not provide me with a copy of the written ‘policy’ it uses to implement and enforce its Program Engagement Strategy. If no written policy exists, then the Department should state that no policy exists responsive to my request.” In a telephone discussion with a staff member of the Public Records Division, a Department representative confirmed that all responsive records have been provided. 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 Whereas as the Department does not possesses any additional records responsive to Mr. Martineau’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Martineau is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b) Sincerely, Rebecca S. Murray Supervisor of Records cc: Henry Martineau