Ryan Welch v. Hampshire County Sheriff's Department (SPR 20221158)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 1, 2022 SPR22/1158 Tom Mitchell Records Access Officer Hampshire County Sheriff’s Office 205 Rocky Hill Road Northampton, MA 01061 Dear Mr. Mitchell: I have received the petition of Ryan D. Welch appealing the response of the Hampshire County Sheriff’s Office (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On March 1, 2022, Mr. Welch requested “any and all audio recordings of the phone calls made by [him]self . . . from the Hampshire County Jail and House of Correction” for a specified time period and to a specified phone number. The Office responded on March 14, 2022, indicating that it did not possess responsive records, and providing the contact information for its vendor, Inmate Calling Solutions, LLC. I note that Mr. Welch also sent an identical request to Inmate Calling Solutions, LLC, which the vendor subsequently denied. Unsatisfied with the Office’s response, Mr. Welch appealed, 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). 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 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

Tom Mitchell SPR22/1158 Page 2 June 1, 2022 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 Office’s March 14th Response In its March 14, 2022 response, the Office states “that the records sought do not reside on a database at the House of Correction. Phone records are stored with [the Office’s] vendor,” and provides the contact information for Inmate Calling Solutions, LLC. Public Records; Agency Relationship Public records must be maintained and kept in a manner that allows access by the general public, as they are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979). The Office is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Committee of Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, the custodian has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the Office’s response, it is unclear whether the records for the Office’s agents were searched. As such, I find that the Office must provide additional information detailing their search in order to determine if the Office has met its burden under G. L. c. 66, § 10(a)(ii) to provide records that are in the possession, custody, or control of the custodian of records at the time of the request. The Office is further advised that, if it intends to withhold records, it must identify any records it intends to withhold, and provide the specific reasons for such withholding. 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). Conclusion Accordingly, the Office is ordered to provide Mr. Welch 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.

Tom Mitchell SPR22/1158 Page 3 June 1, 2022 Sincerely, Rebecca S. Murray Supervisor of Records cc: Ryan D. Welch (by mail)