Jose L. Negron v. Department of Correction - Legal Division (SPR 20222293)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 25, 2022 SPR22/2293 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Jose Negron appealing the response of the 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 September 1, 2022, Mr. Negron requested the following records: [1] The cover memo from requestor making changes, revision, deletion of additions to 103 DOC 522.01 Internal Affairs from 2019 through 2022; [2] Attachment 5 Policy Review Tracking Forms from 2019-2022; [3] A copy of the old and new Internal Affairs Unit policies from 2019-2022. On September 9, 2022, the Department provided Mr. Negron with a response to his September 1st request. The Department’s response to each of the three enumerated requests are as follows: Request 1: Please find the cover memo for 2019. Please be advised that starting in 2020 there are no cover memos based on a change to the policy process; Request 2: Please be advised that there are no records responsive to your request. The attachment 5 is no longer utilized based upon a change to the policy process. 103 DOC 104, Internal regulations is currently being reviewed to reflect the changes; and Request 3: Enclosed please find the records responsive to your request. Revised request As a result of the Department’s September 9th response, Mr. Negron contacted the Department on September 12, 2022, and revised his original September 1st request. Mr. Negron requested the following: 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 SPR22/2293 Page 2 October 25, 2022 [1]…the [c]over [m]emos of 2019, through 2021 changes, revision, deletion or addition to 103 DOC 522 Internal Affairs Unit; [2]…attachment 5 [p]olicy review tracking forms from 2019 through 2021; [3]... the old [p]olicy of 103 DOC 522 from 2004 and 2007, 2017; [4]…new Internal [Affairs] of 2022; and [5]…written permission forms (RCB) 2E and 2M to destroyed and agency documents from 2019-2022. On September 29, 2022, the Department responded to Mr. Negron’s September 12th request. Unsatisfied with the Department’s responses, Mr. Negron petitioned this office and this appeal, SPR22/2293, 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) (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…”); 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). The Department’s September 29th response In its September 29th response, the Department asserts the following: “Request 1: Enclosed please find the 2019 cover memo. There was no review in 2020. As stated in my last response [September 9, 2022] cover memos are no longer done so I included a copy of the tracked changes for 2021; Request 2: Please be advised that there are no records responsive to your request. Attachment 5 was not completed in 2019, there was no review in 2020 and they are no longer utilized for the review in 2021; Request 3: Enclosed please find the records responsive to your request; Request 4: There is no record responsive to your request. Please be advised that 103 DOC 104, Internal Regulation is currently undergoing the review process and has not been published; and,

Kate Silvia SPR22/2293 Page 3 October 25, 2022 Request 5: Enclosed please find the records responsive to your request.” Current appeal In his appeal petition, Mr. Negron objects to the Department’s September 9th and September 29th responses to the request for cover memos for 2020-2021, and his requests for the Department’s Attachment 5 policy review tracking forms from 2019 to 2021. In addition, Mr. Negron seeks the Department’s approval from the Records Conservation Board of the Department’s permission forms (RCB Forms) to destroy Department records in 2019-2022. Records provided from the original September 1st and revised September 12th request Mr. Negron was provided with the 2019 cover memo that was requested, and the Department’s September 9th and September 29th responses confirm that there are no further records responsive to Mr. Negron’s requests for cover memos. See Mr. Negron’s Request No. 1. Consequently, I find that the Department has met its burden in responding to Mr. Negron’s request for cover memos. Mr. Negron requested, in his September 12th request, the old policy of 103 DOC 522 from 2004, 2007 and 2017. In its September 29th response, the Department provided Mr. Negron with the records responsive to this request for the Department’s old policies of 103 DOC 522. Consequently, I find that the Department has met its burden in responding to Mr. Negron’s request for the old policy of 103 DOC 522. The Department provided the requested Records Conservation Board (RCB) forms 2E and 2M to request destruction of the Departments’ records from 2019-2022. See Mr. Negron’s Request No. 5 (September 12, 2022). However, based on the RCB forms provided to Mr. Negron, it is unclear whether the Department received the required permission from the RCB before destruction of any of the categories or series of records the Department sought permission to destroy. Where it is unclear regarding the RCB’s approval for destruction of records, the Department should provide the requestor with a copy of the RCB-2U forms from the Department’s 2020 submission to the RCB that has the RCB’s approval noted on the form with the required signatures and date of approval. The Department must clarify this issue. No records responsive to the requests Regarding the Department’s Attachment 5 [p]olicy review tracking forms from 2019 through 2021, the Department informed Mr. Negron that, “…there are no records responsive to your request. Attachment 5 was not completed in 2019, there was no review in 2020 and they are no longer utilized for the review in 2021.” See Mr. Negron’s September 29th Request No. 2. With respect to Mr. Negron’s request for “Cover Memos from 2019-2021,” the Department provided him with the only records responsive to the request, the 2019 Cover Memo.

Kate Silvia SPR22/2293 Page 4 October 25, 2022 Mr. Negron is advised, 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). In addition, under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). Where the Department has indicated that it does not have additional records responsive to these Items, I find that Mr. Negron’s petition regarding these Items are resolved. Conclusion Accordingly, the Department is ordered to provide a response to Mr. Negron in a manner consistent with this order, the Public Records Law, and its Regulations within ten (10) 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. Sincerely, Manza Arthur Supervisor of Records cc: Jose L. Negron