Ria Guerra-Norris v. Massachusetts Parole Board (SPR 20213111)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records December 13, 2021 SPR21/3111 Charles Walsh, Esq. Legal Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Attorney Walsh: I have received the petition of Ria Guerra-Norris appealing the response of the Massachusetts Parole Board (Board) to her request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 15, 2021, Ms. Guerra-Norris requested: [1] The name of the contractor that provided or continues to provide surveillance services … of the entire office space for the Region 4 Parole Office in Worcester from 4/1/21 to 5/1/21. [2] …contract that was executed for the contractor's services, please provide … a copy via this email address or a url to the state's procurement website. [3] If a contractor did not provide these services … the name of the agency and/or person/s that did during this period. Previous Appeal The requested records were the subject of a previous appeal. See SPR21/2909 Determination of the Supervisor of Records (November 16, 2021). The Board responded on November 29, 2021. Unsatisfied with the Board’s response, Ms. Guerra-Norris petitioned this office and this appeal, SPR21/3111, 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). 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. SPR21/3111 Page 2 December 13, 2021 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. The Board’s November 29th Response In its November 29th response, the Board stated that “… it did not have a contract with a contractor providing surveillance services for the Region 4 Parole Office. Please note that requests 1. and 3. are not subject to the public record laws because these are questions and not requests for records. Public Records Law only applies to records.” No Duty to Create Records In a conversation between a Public Records Division staff attorney and a Board representative, the Board confirmed that no records exist because there are no cameras present at the requested location. Please be advised, under the Public Records Law the Board is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d). 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). Additionally, please note that under the Public Records Law, a public employee is not required to answer questions, do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Conclusion Where the Board does not possess any records responsive to Ms. Guerra-Norris’ request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Guerra-Norris is not satisfied with the resolution of this administrative appeal, she is advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(A)(c). Sincerely, Rebecca S. Murray Supervisor of Records cc: Ria Guerra-Norris