Emmett S. Muldoon v. Department of Correction (SPR 20220556)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 18, 2022 SPR22/0556 Kate Silvia Director of Communications Records Access Officer Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Emmett S. Muldoon 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 January 27, 2022, Mr. Muldoon requested, among other things, the following: 4. A copy of all legal-related documents mailed to Emmett S. Muldoon from the Worcester Trial Court Library, on or about November 10, 2021, but subsequently seized by the MCI Norfolk mailroom as “excessive pages” . . . 5. A copy of all documents mailed to Emmett S. Muldoon from TD Ameritrade, between January 1, 2021 and the present date of which the officials at MCI Norfolk routinely copy. The Department responded on February 14, 2022, denying the above requests. Unsatisfied with the Department’s response, Mr. Muldoon appealed “the RAO’s denial of Requests ## 4 and 5,” and this case 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 agency or municipality 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

Kate Silvia SPR22/0556 Page 2 March 18, 2022 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. Att’y 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 custodian must provide the responsive records. Current Appeal In his appeal petition, Mr. Muldoon contends that “the problem is that [his] own personal mail never reached [him] and instead was seized by the DOC.” The Department’s February 14th Response In its February 14, 2022 response, the Department argues “that these documents do not constitute public records” and that Mr. Muldoon is “seeking [his] own personal mail which is not a government record.” The Department is advised that, as noted above, the definition of public records includes all papers and documentary materials “received by any officer or employee . . . of the commonwealth.” G. L. c. 4, § 7(26). Based on the Department’s response, and Mr. Muldoon’s appeal petition, it is unclear how the Department did not receive the responsive documents described in items 4 and 5 of the request. Further, based on the Department’s response, it is unclear which exemption the Department is citing in order to withhold the records from items 4 and 5 of the request. See G. L. c. 66, § 10(b )(iv) (a 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 ------------------------------- (1995); Flatley, 419 Mass. at 511; Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must clarify these matters. Conclusion Accordingly, the Department is ordered to provide Mr. Muldoon with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us.

Kate Silvia SPR22/0556 Page 3 March 18, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Emmett S. Muldoon (by mail)