Robert W. Anderson, Jr. v. Department of Correction - Legal Division (SPR 20212981)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records November 17, 2021 SPR21/2981 Kate M. Silvia Director of Public Records Department of Correction – Legal Division 50 Maple Street Milford, MA 01757 Dear Kate Silvia: I have received the petition of Robert Anderson Jr. 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 October 18, 2021, Mr. Anderson requested a copy of “the ‘Approved Substitution List’ for the items listed on the ‘Therapeutic Finger Food Menu’ as is required under 103 DOC 760: Food Services policy; [c]opies of the DOC Meal Spreadsheets, detailing caloric values for each meal and each item in each meal, for each day of the twenty-one (21) day cycle of the ‘Therapeutic Finger Food Menu’; and, [c]opies of any/all ‘Standard Menus’ for the time periods from January 2019 to January 2022, and their twenty-one (21) day cycle ‘DOC Meal Spreadsheets’ along w/’Approved Substitution Lists’ for each menu and its items.” The Department provided a response on October 27, 2021. Unsatisfied with the Department’s response, Mr. Anderson petitioned this office and this appeal, SPR21/2981, 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 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 M. Silvia SPR21/2981 Page 2 November 17, 2021 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. The Department’s October 27th response In its October 27, 2021 response, the Department stated, “there is not a separate analysis of the finger food menu as it is the same as the standard menu… Please see the enclosed records responsive to your request. There is no ‘approved substitution list.’” Current Appeal In his current appeal, Mr. Anderson stated, “[I] assert that the [Department] did not provide [me] with the ‘Approved Substitution Lists’ at all, and what [it] provided as being the ‘DOC Meal Spreadsheets’ are not the correct documents…Attached…is a copy of one of the DOC Meal Spreadsheets th[at I] was requesting. Please note that it contains both nutritional and caloric values for each meal item and the size of the item’s portion. In comparison, what [the Department] provided does not provide either caloric or nutritional values for the meal item’s portions and thus clearly is not what [I] had requested…There also cannot be any issue that the ‘Approved Substitution Lists’ [I] requested exist because [the Department’s] Agency Policy…specifically references them and requires officers handling meals to adhere to them when making food item substitutions[.]” Based on the Department’s response, it is unclear if it possesses additional records responsive to the above request. The Department must clarify this. 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. Anderson with a response to the request, provided 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.

Kate M. Silvia SPR21/2981 Page 3 November 17, 2021 Sincerely, Rebecca S. Murray Supervisor of Records cc: Robert Anderson Jr.