Tom Marino v. Massachusetts Parole Board (SPR 20222501)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 18, 2022 SPR22/2501 Stacy Book Records Access Officer Massachusetts Parole Board 12 Mercer Road Natick, MA 01760 Dear Ms. Book: I have received the petition of Tom Marino, of This Week in Worcester, appealing the response of the Massachusetts Parole Board (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On August 24, 2022, Mr. Marino requested: 1. Information related to the training/presentation made by [a named individual] of [an identified company] on May 24, 2016 including slides presented, handouts distributed to Parole Board staff, recordings, notes taken or other information indicating content of the presentation. 2. Contractual agreement, agreement for services, or other documentation that articulates any relationship between the Massachusetts Parole Board and [a named company] and/or [a named individual] that were in effect at any time between 2016 to present. 3. [Two identified attachments] attached to the email from [a named individual] of [an identified company] to [a named individual] on Wednesday, February 7, 2018 at 9:12:09 PM. 4. [An identified attachment] attached to the email from [a named individual] to [a named individual] of [an identified company] on April 11, 2017, at 11:05:16 AM. 5. Emails between [an identified individual] and individuals with an email address containing [an identified ending], starting with the most recent and proceeding in reverse chronological order[.] On October 4, 2022, the Board responded. Unsatisfied with the response, Mr. Marino petitioned this office and this appeal, SPR22/2501, was opened as a result. 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

Stacy Book SPR22/2501 Page 2 November 18, 2022 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. 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. 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. The Board’s October 4th Response In its October 4, 2022 response, the Board asserts: 1. No records responsive to request. 2. No records responsive to request. 3. Additional time is needed to determine whether attachments are available. 4. Additional time is needed to determine whether attachment is available. 5. All requested emails were previously provided. Please clarify i[f] this request differs from your previous request. On October 5, 2022, Mr. Marino responded: In lieu of the request at #5, may I please request emails that include the word “Vivitrol” that include other appointed members of the parole board, past or present? Please exclude emails with those with an email address that includes [an identified ending], unless I’ve yet to receive them. If the volume is prohibitive, please inform me of the number of emails included in the query. I request to please complete the portion of the request that includes the attachments requested at #3 and #4 as they become available and separately of this adjusted portion of the request in this email.

Stacy Book SPR22/2501 Page 3 November 18, 2022 On October 6, 2022, the Board stated that “[t]he revised request is very broad—is there a way to narrow it to a certain timeframe?” Mr. Marino provided responses on October 6, 2022 and October 21, 2022. Current Appeal In his appeal, Mr. Marino asserts: [T]he response has been negligent at best. There has been some back and forth on the scope of my email requests…. After I asked if my modified request for emails was more agreeable on Oct. 6, the RAO has declined to respond. Part of my request was for three attachments to two emails I received in the first request, which I was not provided. The RAO responded: “Additional time is needed to determine whether attachments are available.” I have received no estimated time frame, just, again, a declaration of more time needed and a cessation of contact, once again. G. L. c. 66, § 10(b) provides, in pertinent part, that if the magnitude or difficulty of the request unduly burdens the other responsibilities of the agency or municipality such that the agency or municipality cannot provide records within 10 business days, the agency or municipality must inform the requestor in writing within 10 business days. With respect to the timeframe to produce responsive records, the written response shall: identify a reasonable timeframe in which the agency or municipality shall produce the public records sought; provided, that for an agency, the timeframe shall not exceed 15 business days following the initial receipt of the request for public records and for a municipality the timeframe shall not exceed 25 business days following the initial receipt of the request for public records; and provided further, that the requestor may voluntarily agree to a response date beyond the timeframes set forth herein. G. L. c. 66, § 10(b)(vi). Where the request from Mr. Marino was submitted on August 24, 2022, and the Board has not provided a timeframe in which it intends to produce responsive records, I find the Board has not met its burden in responding to the request in accordance with G. L. c. 66, § 10(b)(vi). Consequently, I find the Board must provide an estimated date as to when it intends to provide the outstanding records. See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). To the extent possible, the Board must provide responsive records on a rolling basis. Further, based on the Board’s responses, in conjunction with Mr. Marino’s appeal and his modified request, it is unclear if the Board possesses records responsive to the request. The duty

Stacy Book SPR22/2501 Page 4 November 18, 2022 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). To the extent that records exist, I find the Board must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). See G. L. c. 66, § 10(a) (records must be provided without unreasonable delay). This office encourages Mr. Marino and the Board to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, §10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Conclusion Accordingly, the Board is ordered to provide Mr. Marino with a response to the request, provided 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 this response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Tom Marino