Andrew Quemere v. Department of Corrections - Administrative Services (SPR 20221221)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records June 3, 2022 SPR22/1221 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Andrew Quemere appealing the response of the Massachusetts Department of Correction (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On May 22, 2022, Mr. Quemere filed a public records request for “the Ripples Group’s recent report on MCI-Framingham.” On May 23, 2022, the Department responded. Unsatisfied with the Department’s response, Mr. Quemere petitioned this office and this appeal, SPR22/1221, 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 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. 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 SPR22/1221 Page 2 June 3, 2022 The Department’s May 23rd Response In its May 23, 2022 response, the Department stated that it “is not the custodian of the record that you seek. The Division of Capital Asset Management and Maintenance (DCAMM) is the custodian.” Current Appeal In his appeal, Mr. Quemere asserts that “[i]t is not clear from the [Department’s] response if it possesses a copy of the requested record. If the [Department] possesses a copy, it must produce it in response to my request. Please order the [Department to clarify this matter and comply with the public records law.” In an email dated June 2, 2022, the Department confirmed that “the Department does not have a copy of the report.” 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 does not possess any records responsive to Mr. Quemere’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Mr. Quemere 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). Sincerely, Rebecca S. Murray Supervisor of Records cc: Andrew Quemere