Miguel Marraro v. Department of Correction (SPR 20221186)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 3, 2022 SPR22/1185; SPR22/1186 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple St. Milford, MA 01757 Dear Ms. Silvia I have received the petitions of Miguel Marraro appealing the responses of the Massachusetts Department of Correction (Department) to requests for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On April 3, 2022, and April 7, 2022, Mr. Marraro made two requests for canteen purchases from 2019-2022. The Department provided responses on April 7, 2022, and April 28, 2022. Unsatisfied with the Department’s responses Mr. Wood petitioned this office and these appeals, SPR22/1185 and SPR22/1186, were 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 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 April 7th and April 28th responses On April 7, 2022 and April 28, 2022, the Department provided responses stating, “…there are no records responsive to your request.” 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 SPR22/1185; SPR22/1186 Page 2 June 3, 2022 Current Appeal In his appeal, Mr. Marraro suggested that the Department has records responsive to his request. In a phone call with this office, the Department confirmed that there are no responsive records to Mr. Marraro’s requests. 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. Att’y 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 Where the Department has confirmed it does not possess any records responsive to Mr. Marraro’s requests, and has no duty to create records responsive to the requests, I will now consider this administrative appeal closed. If Mr. Marraro is not satisfied with the resolution of these administrative appeals, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, § 10(b). Sincerely, ~ - o .f) ..d ~ ~ ~ -· ~ Rebecca S. Murray Supervisor of Records cc: Miguel Marraro