Mel Patten v. Division of Capital Asset Management and Maintenance (SPR 20211726)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 26, 2021 SPR21/1726 Christopher D. Guerin, Esq. Special Counsel Division of Capital Asset Management and Maintenance One Ashburton Place, 15th Floor Boston, MA 02108 Dear Attorney Guerin: I have received the petition of Mel Patten of MuckRock News appealing the response of the Division of Capital Asset Management and Maintenance (DCAMM) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 1, 2021, Mel Patten requested the following: All email communication regarding Mass State Project DOC 2002, Bay State Correctional Center, facility conditions at MCI-Framingham, trauma informed prison, women’s prison, and/or strategic plan and feasibility study for women’s corrections sent between Massachusetts Department of Correction (DOC), Division of Capital Access Management and Maintenance (DCAMM), Executive Office of Public Safety and Security (EOPSS), and/or Governor Baker’s office occurring between April 1, 2020 and July 31, 2020. The Department responded on April 26, 2021, providing responsive records in redacted form, claiming to redact the records pursuant to Exemption (n), and claiming to withhold others pursuant to the attorney-client privilege. On June 3, 2021, Mel Patten sent a follow-up request to the Department, stating that “[t]here are no emails from July. Is this an oversight or were there actually no emails sent or received in July responsive to this request?” Claiming to have received no further reply, Mel Patten appealed, and this case 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 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

Christopher D. Guerin, Esq. SPR21/1726 Page 2 July 26, 2021 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. Records in Existence 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). In an email to this office and Mel Patten on July 23, 2021, the Department stated that “[n]o additional records will be provided at this time as no non-exempt records for the subject time period exist.” Burden of Specificity in Claiming Exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv) (written response must “identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon which the withholding is based ”); see also Globe Newspaper Co. -------------------- v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein ------------ v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department’s response did not contain the specificity required in a denial of access to public records. The Department did not identify the records in its possession that it intends to withhold from disclosure, nor did it cite an exemption for withholding them. Based on the information provided in Mel Patten’s appeal and the Department’s July 23rd email, it is not clear whether additional records exist responsive to the request. The Department must clarify this.

Christopher D. Guerin, Esq. SPR21/1726 Page 3 July 26, 2021 Conclusion Accordingly, the Department is ordered to provide Mel Patten with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Mel Patten