Frederick Perry v. TKC Holdings, Inc. (SPR 20212158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records September 3, 2021 SPR21/2158 Justin Moore, Esq. Assistant Counsel TKC Holdings, Inc. 1260 Andes Boulevard St. Louis, MI 63132 Dear Attorney Moore: I have received the petition of Frederick Perry appealing the response of TKC Holdings, Inc. (TKC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 13, 2021, Mr. Perry requested copies of “Keefe Commissary Network’s financial report” and revenues paid, as it pertains to Department of Correction facility at Norfolk for fiscal years 2019 and 2020. TKC responded on July 30, 2021, asserting that it is a private entity not subject to the Public Records Law, and denying access to responsive records. Unsatisfied with TKC’s response, Mr. Perry petitioned this office and this appeal, SPR21/2158, was opened as a result. While this appeal was pending, TKC provided a supplemental response on September 3, 2021. 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 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

Justin Moore, Esq. SPR21/2158 Page 2 September 3, 2021 custodian must provide the responsive records. TKC’s July 30th and September 3rd responses In its July 30, 2021 response, TKC asserts, “. . . M.G.L.c. 66 § 10 seemingly does not apply to Keefe Commissary Network in this context, or the records you seek. We are a private company, not an ‘agency or municipality,’ as defined therein. We could also find no authority for your position that M.G.L.c. 66 § 10 ‘applies to all private entities who engaged in a contractual relationship with a public entity,’ though if you are in possession of such authority, please forward same so we can reconsider your request.” TKC further states, “. . . many of the documents you seek are confidential and privileged, and not subject to production to individuals who are currently incarcerated. Your requests are also vague and ambiguous, making it difficult for us to formulate a response. See, e.g., your request seeking information as to the ‘financial report’ for ‘certain Massachusetts Department of corrections facilities,[’] and ‘revenues paid.’” In its September 3, 2021 supplemental response, TKC states, Mr. Perry’s “. . . key contention in the current appeal is that we are subject to an open records request because, ‘Keefe Commissary Network, owned by TKC Holdings, is in a contractual relationship with the Mass. Department of Corrections.’ . . . As the pertinent statute makes clear, and as explained by Rebecca S. Murray, Supervisor of Records, in her letter to the inmate on December 21, 2020, in regard to another one of Mr. Perry’s other records requests (SPR20/2421), ‘The Public Records Law only applies to private companies…who receive or expend public funds for the payment or administration of pensions for any current or former employees of the commonwealth...,’ not to every single company who has any kind of contract with the state. In sum, we are under no obligation to respond to inmate Perry’s records request made pursuant to either FOIA or M.G.L.c. 66 § 10[.]” The Public Records Law The Public Records Law applies to all records . . . made or received by any officer or employee of any agency, executive office, department, board, commission, bureau, division or authority of the commonwealth, or of any political subdivision thereof, or of any authority established by the general court to serve a public purpose, or any person, corporation, association, partnership or other legal entity which receives or expends public funds for the payment or administration of pensions for any current or former employees of the commonwealth or any political subdivision as defined in section 1 of chapter 32. . . G. L. c. 4, § 7(26). The Public Records Law therefore applies to public entities, and does not apply to private entities who are not engaged in an agency or contractual relationship with a public entity. Public

Justin Moore, Esq. SPR21/2158 Page 3 September 3, 2021 records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. - - - Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). Based on TKC’s responses, I find that it does not fall within the definition set forth in G. L. c. 4, § 7(26). Accordingly, I will consider this administrative appeal closed. If Mr. Perry 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) (pursuing administrative appeal does not limit availability of applicable judicial remedies). Sincerely, Rebecca S. Murray Supervisor of Records cc: Frederick Perry