Clint Guerra v. Massachusetts Parole Board (SPR 20212020)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records August 19, 2021 SPR21/2020 Charles Walsh, Esq. Legal Counsel, Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Walsh: I have received the petition of Clint Guerra appealing the response of the Massachusetts Parole Board (Board) to his request for public records. G. L. c. 66, §10A; see also 950 C.M.R. 32.08(1). On May 18, 2021, Mr. Guerra requested, “[e]mail communications between all public officials that discussed matters surrounding the home visit [and] [a] copy of the petition was submitted to the Parole Board, requesting reconsideration of their vote to grant [named person] re- parole.” Subsequently, Mr. Guerra amended his request as follows: “…communication surrounding the home visit.” The Board responded on May 24, 2021. Unsatisfied with the response, Mr. Guerra appealed and SPR21/2020 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(d)(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…”); 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). 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

Charles Walsh, Esq. SPR21/2020 Page 2 August 19, 2021 The Department’s May 24th Response Based upon a communication with a Public Records Division staff attorney and the Board, the Board advised that the records at issue are the subject matter of cases pending in Worcester Superior Court. See Kevin Doe v. Kevin Devlin et. al. 2085-CV-00647; Kevin Guerra v. Massachusetts Parole Board et al. Docket 1985-CV-01871. Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Rebecca S. Murray Supervisor of Records cc: Clint Guerra