Jacob Neenan v. Department of Correction - Legal Division (SPR 20220808)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2022 SPR22/0808 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Jacob Neenan 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). Specifically, Mr. Neenan requested: “…all written decisions from January 1, 2019 through February 1, 2022 which resulted from disciplinary proceedings that involved confirmatory testing of suspected synthetic cannabinoid samples by the UMass Drugs of Abuse Lab. These should include the evidence relied upon in the hearing officer’s findings and recommended sanctions. It is my understanding that as outlined in 130 C.M.R. 430.17, hearing officers prepared and the [Department] maintains a record of detailed written disciplinary decisions containing this information.” The Department provided a March 23, 2022 response that asserts, “…these records are being withheld as they seek information that is the subject of a dispute in active litigation.” As a result of the response, Mr. Neenan petitioned the Supervisor of Records (Supervisor), and this appeal was opened. On April 13th in response to this appeal, the Department provided a response, asserting: “…there is active litigation concerning the Department’s use of the NARK 20023 field test for synthetic cannabinoids. The case name is Green et al. v. DOC, 2284-cv-2283. Currently, there are two inmate plaintiffs, but there are allegations that suggest the case may become a class action and discovery may involve all inmates charged with offenses relating to synthetic cannabinoids. A central issue in the case is whether facts beyond the NARK 20023 test supported discipline, including whether confirmatory testing was done by DAL (drugs of abuse lab). Thus, the [Department] considers this request to be seeking information in a case where [there] is active litigation.” 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 SPR22/0808 Page 2 April 14, 2022 Active Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the active and ongoing litigation, I decline to opine on this matter. See 950 CMR 32.08(2)(b). See Green, et. al. vs. Massachusetts Department of Correction, Docket No. 2184-cv-2283 (Suffolk County Superior Court). Conclusion Accordingly, this administrative appeal is closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Jacob Neenan Heidi Handler, Esq., DOC Legal