Chimezie Akara v. Department of Correction (SPR 20222738)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 13, 2022 SPR22/2738 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 Chimezie Akara appealing the response of the Department of Correction (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 14, 2022, Mr. Akara requested “[a]ll books, papers, maps, photographs, recorded tapes/disks, financial statements, statistical materials, or other documentary materials or data, regardless of physical form or characteristic, made or received by any officer or employee of your agency…” relating to a specified incident involving the requester. On October 4, 2022, the Department provided a response denying access to the responsive records. Unsatisfied with the Departments’ response, Mr. Akara petitioned this office and this appeal, SPR22/2738, 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. 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. 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 SPR22/2738 Page 2 December 13, 2022 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 October 4th Response In its October 4, 2022 response, the Department cited Exemption (f) of the Public Records Law to withhold the requested records. The Department further advised that the requested records are part of a pending criminal matter. In a conversation between a Department representative and a staff attorney of the Public Records Division, the Department advised that there is pending litigation at Concord District Court, Commonwealth v. Akara, Docket No. 2247CR000852, and that the requested records are related to the proceedings. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending matter, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). Further, I decline to opine on the applicability of Exemption (f) to the requested records. It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b). Sincerely, Manza Arthur Supervisor of Records cc: Chimezie Akara