Candace S. Africa v. Department of Correction (SPR 20222658)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2022 SPR22/2658 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Candace Shekinah Africa 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 2, 2022, Ms. Shekinah Africa stated: Whereas, Federal agencies responsible for issuing ADA regulations also provide assistance, either directly (via the Department of Justice) or through grants and contracts; the records that are being requested for review would entail these specified goods, services and/or monies received between the following dates: (January 1, 2017) through (July 31, 2019). On September 29, 2022, Ms. Shekinah Africa clarified her request and requested: [1] Contract(s) (between the Massachusetts Department of Correction and the United States Department of Justice)[and 2] Any Agreement(s) (concerning the MA-DOC functioning as a corporation per M.G.L. c. 124 (m), whereby as a “public entity” it must ensure the individuals with disabilities are not excluded from services, programs and activities). On October 20, 2022, the Department responded. Unsatisfied with the Department’s response, Ms. Shekinah Africa petitioned this office and this appeal, SPR22/2658, 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 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 SPR22/2658 Page 2 December 2, 2022 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. The Department’s October 20th Response In its October 20, 2022 response, the Department states, “[p]lease be advised that the Department does not have any contract with the Department of Justice. Additionally, the Department does not have agreements. The Department follows all applicable State and Federal Laws.” Current Appeal In her appeal, Ms. Shekinah Africa asserts: [T]he Massachusetts Department of Correction (“MA-DOC”) has a policy & practice, which allows it to “be a corporation for the purpose,”…and receive funds, etc. to be in compliance to the US-DOJ’s laws. Moreover, the MA-DOC has neither been forthright with review of any agreements/contracts established, nor to have even made annual reports to the General Court of the Commonwealth, per M.G.L.c. 124, § 10. In a conversation between a Department representative and a staff attorney in this office, the Department representative confirmed that the Department does not possess any records responsive to Ms. Shekinah Africa’s request. 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). Where the Department has confirmed that it has no responsive records in its possession, I find that Ms. Shekinah Africa’s appeal regarding the September 29th request is resolved.

Kate Silvia SPR22/2658 Page 3 December 2, 2022 Conclusion Where the Department does not possess any records responsive to Ms. Shekinah Africa’s request, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. If Ms. Shekinah Africa 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, Manza Arthur Supervisor of Records cc: Candace Shekinah Africa