Thomas Starefos v. Old Colony Correctional Center (SPR 20230303)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 2, 2023 SPR23/0303 Gayle Tickel Executive Office of Public Safety and Security Department of Correction Old Colony Correctional Center One Administration Road Bridgewater, MA 02324 Dear Ms. Tickel: I have received the petition of Thomas Starefos appealing the response of the Old Colony Correctional Center (Center) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On December 30, 2022, Mr. Starefos requested the following records: [a] Copy of the Fall/Winter 2023 Gluten-Free Diet Standard Menu; [b] Copy of the Fall/Winter 2023 Gluten-Free Diet Portion Control Menu; and, [c] Copy of the Fall/Winter 2023 Gluten-Free Diet Nutritional Values Menu. On January 17, 2023, the Center provided Mr. Starefos with a response. Unsatisfied with the Center’s response, Mr. Starefos petitioned this office and this appeal, SPR23/0303, 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 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

Gayle Tickel SPR23/0303 Page 2 March 2, 2023 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 Center’s January 17th Response On January 17, 2023, the Center provided Mr. Starefos with a copy of the requested Fall/Winter 2023 Gluten-Free Diet Standard Menu; the Gluten-Free Diet Portion Control Menu; and, the Gluten-Free Diet Nutritional Values Menu. On January 20, 2023, Mr. Starefos sent the Center a letter indicating discrepancies between what he requested and what he received. Mr. Starefos informed the Center of the following: [a] [In Request (b)] I asked for a copy of the Fall/Winter 2023 Gluten-Free Diet Portion Control Menu. This is a twenty-one (21) day Menu and if you check your response, also enclosed, you’ll see that you only provided me with Day 21 and no other days; and [b] In [Request (c)], I asked for a copy of the Fall/Winter 2023 Gluten-Free Nutritional Values Menu; but a review of your [r]esponse shall show you provided nothing for this nor did you address it in any way. In a January 30, 2023 response to Mr. Starefos’ January 20th letter, the Center responded, “[t]he Center’s Food Service Center submitted the documents related to your request and have confirmed they are correct.” Current appeal In his petition, Mr. Starefos asserts, “[the Center] supplied [r]ecords [and they] are incomplete as there was no Nutritional Value Tables/Menus provided for a Gluten-Free Diet and a review of the supplied [r]ecords shows that [the Center] supplied [me] with Day 21 of the Gluten-Free Diet but that Days 1-20 were not supplied. And, that since there’s a Day 21 there has to be Menus titled Day 1-Day 20 for the Gluten-Free Diet Menu.” Based on the Center’s response, in conjunction with Mr. Starefos’ claim, it is unclear if the Center possesses additional records 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). Custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). The Center must

Gayle Tickel SPR23/0303 Page 3 March 2, 2023 clarify whether it is in possession of the Nutritional Value information for Days 1-20 of the Fall/Winter Gluten-Free Meal Schedule and records responsive to Item c of the request. Conclusion Accordingly, the Center is ordered to provide Mr. Starefos with a response to his request 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: Thomas Starefos