Steven L. Smith v. Suffolk County Sheriff's Department (SPR 20222693)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 2, 2022 SPR22/2693 Maria F. Romero, Esq. Assistant General Counsel Suffolk County Sheriff’s Department 200 Nashua Street Boston, MA 02114 Dear Attorney Romero: I have received the petition of Steven Smith appealing the response of the Suffolk County Sheriff’s Department (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On November 1, 2022, Mr. Smith requested: [1]… a copy of [a named individual’s] grievances [against the legal department] and responses to them. [2]… fax sheets, tax memos, requests faxed to [a named individual] and copies of those grievances faxed to him. The Department provided a response on November 10, 2022. Unsatisfied with the Department’s response, Mr. Smith petitioned this office and this appeal, SPR22/2693, 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(d)(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 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

Maria F. Romero, Esq. SPR22/2693 Page 2 December 2, 2022 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). 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 Department’s November 10th Response In its November 10, 2022 response, the Department stated, “[e]nclosed please find another copy of your inmate account statements for March 19, 2022 through September 19, 2022 and cover letter which was originally sent on October 28, 2022 as dated.” Current appeal In his appeal, Mr. Smith advised that he did not receive a copy of his grievances and the responses to the grievances. In light of the claims made by Mr. Smith, it is unclear if the Department possesses additional records that may be responsive to the request. 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). To the extent that additional records exist, I find the Department 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). Conclusion Accordingly, the Department is ordered to provide Mr. Smith 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: Steven Smith