Emmett S. Muldoon v. Department of Correction (SPR 20230426)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2023 SPR23/0426 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 Emmett S. Muldoon 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 January 31, 2023, Mr. Muldoon requested the following records: [1] All contraband notices, as required pursuant to 103 CMR 481.12C(1), that relate to the incoming non-privileged mail sent to inmate [named individual], the original of which is seized as contraband and based on the presumption it contains drugs, and which a copy of is provided. [2] Pursuant to 103 CMR 481.15(6), please provide an index or list of all referrals to the appropriate law enforcement agency by the Superintendent ..., and copies of all correspondence to the Commissioner of such referrals. The Department provided a response on February 14, 2023. Unsatisfied with the Department’s response, Mr. Muldoon petitioned this office and this appeal, SPR23/0426, 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). 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 SPR23/0426 Page 2 March 14, 2023 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 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 14th Response In its February 14, 2022 response, the Department stated, “... there are no records responsive to your request. All original non-privileged mail is maintained at the facility. With the promulgation of the new CMR a process will be developed.” 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. Muldoon is advised that this office shares jurisdiction with the Superior Court of the Commonwealth of Massachusetts. See G. L. c. 66, § 10A(c).

Kate Silvia SPR23/0426 Page 3 March 14, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Emmett S. Muldoon