Joshua Carrier v. Department of Correction (SPR 20230324)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records February 27, 2023 SPR23/0324 Kate Silvia Communications Director Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Joshua Carrier appealing the response of the Department of Corrections (Department) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 29, 2023, Mr. Carrier requested, “[t]he updated Keefe Bulk Commissary Catalog with all products that are available from Keefe to purchase by the DOC.” The Department provided a response on February 3, 2023. Unsatisfied with the Department’s response, Mr. Carrier petitioned this office and this appeal, SPR23/0324, 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 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 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 SPR23/0324 Page 2 February 27, 2023 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 February 3rd Response In its February 3, 2022 response, the Department stated, “[p]lease be advised the Department is not the custodian of this record. The Department does not have possession, custody or control of it.” Current appeal In his appeal, Mr. Carrier stated, “I have personally seen a 2018 Keefe Bulk Commissary Catalog in the possession of the DOC at Old Colony Correctional Center. This [catalog] is given to all Superintendents and to the Head of the Commissary committee… I have attempted to contact Keefe about this catalog and they informed me that they send these catalogs to the DOC… but if I wanted a copy I would need to contact the DOC…” No Duty to Create Records Under the Public Records Law, the Department is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 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). Based upon a conversation between a Public Records Division staff member and a Department representative, the Department confirmed that it has no records responsive to the request. Conclusion Accordingly, where the Department has confirmed that it does not possess records, and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Mr. Carrier is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c). Sincerely, Manza Arthur Supervisor of Records cc: Joshua Carrier