Matthew Rocheleau v. Department of Correction - Legal Division (SPR 20211044)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 7, 2021 SPR21/1044 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Matthew Rocheleau of the Boston Globe 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). On February 2, 2021, Mr. Rocheleau requested identified email records. The Department responded to Mr. Rocheleau’s request on March 3, 2021. Unsatisfied with the Department’s response, Mr. Rocheleau petitioned this office and this appeal, SPR21/1044, 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. 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. 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 SPR21/1044 Page 2 May 7, 2021 The Department’s March 3rd response In its March 3, 2021 response, the Department stated to Mr. Rocheleau that it provided him “attached queries” regarding his records request. Mr. Rocheleau followed-up with the Department about providing records “for a narrower timeframe for each person -- from and including 1/10/2020 through and including 1/21/2020.” In Mr. Rocheleau’s appeal to this office he claims “[o]n March 22, 2021 a fee estimate of $736.66 was provided and agreed to; a check for $736.66 was mailed that date and DOC confirmed receipt of the check on April 1, 2021. I have a bank record (not provided here but if you need to see a copy let me know) showing the check was cashed on April 7, 2021.” Mr. Rocheleau states the Department “still has not provided any records. Nor has the agency provided any substantive update or stated any plan for when it will produce the records.” In light of the above, it is unclear if the Department is withholding any responsive records to the request. 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 Accordingly, the Department is ordered to provide Mr. Rocheleau with the requested records in a manner consistent with this order, the Public Records Law and its Regulations within ten (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: Matthew Rocheleau