Laurel Kratochvila v. Department of Correction - Legal Division (SPR 20213339)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 6, 2022 SPR21/3339 Kate Silvia Records Access Officer Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Laurel Kratochvila appealing the response of the Department of Correction (Department/DOC) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On October 1, 2021, Ms. Kratochvila requested “…the DOC state custody record” for an identified individual. Previous appeal This request was the subject of a previous appeal. See SPR21/2575 Determination of the Supervisor of Records (October 20, 2021). See SPR21/3219 Determination of the Supervisor of Records (December 17, 2021). In my December 17th determination, I found the Department had not met its burden to withhold responsive records under Exemption (a) of the Public Records Law. G. L. c. 4, § 7(26)(a). The Department provided a further response on December 22, 2021. Unsatisfied with the Department’s response, Ms. Kratochvila petitioned this office and this appeal, SPR21/3339, 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 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 Silvia SPR21/3339 Page 2 January 6, 2022 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 Department’s December 22nd response In its December 22, 2021 response, the Department asserts “…upon further inspection using a search with date of birth, the Charles Taylor you are inquiring about was not incarcerated with the Department of Correction, rather the Plymouth County House of Correction. The MA Department of Correction is not the custodian of the records that you seek.” Current Appeal Ms. Kratochvila indicated in her appeal that the Department did not provide all documents responsive records to her request. Ms. Kratochvila stated that “…the response to my current appeal is incomplete or perhaps insufficiently researched. While Taylor was not serving a state sentence, he was incarcerated at MCI Norfolk. Perhaps his records went with him to Plymouth County, but there should at least be an administrative chronology showing his time at the DOC.” In a telephone discussion with a staff member of the Public Records Division, a Department representative confirmed that no responsive records exist. No Duty to Create Records Please be advised, under the Public Records Law a custodian is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 Whereas as the Department has confirmed it does not possesses any records responsive to Ms. Kratochvila’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Kratochvila 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).

Kate Silvia SPR21/3339 Page 3 January 6, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Laurel Kratochvila