Kevin Norris v. Massachusetts Parole Board (SPR 20230493)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 28, 2023 SPR23/0493 Courtney E. Doherty, Esq. Deputy General Counsel Massachusetts Parole Board 12 Mercer Road Natick, MA 02324 Dear Attorney Doherty: I have received the petition of Kevin Norris appealing the response of the Massachusetts Parole Board (Board) to a request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On January 11, 2023, Mr. Norris requested the following: [1] A copy of [a named] inmate last two (2) parole decisions[;] [2] A copy of any document listing the racial breakdown of all parole board employees, and the racial breakdown of parole officers and parole supervisors; [3] A copy of any document listing all parole board employees who have a relative/family member who also is employed by the parole board. Prior Appeal The requested records were the subject of a prior appeal. See SPR23/0282 Determination of the Supervisor of Records (February 24, 2023). In my February 24th determination, I closed the appeal after the Board provided Mr. Norris with a further response on February 22, 2023. Unsatisfied with the Board’s response, Mr. Norris petitioned this Office and this appeal, SPR23/0493, 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 town 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

Courtney E. Doherty, Esq. SPR23/0493 Page 2 March 28, 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(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. The Board’s February 22nd response In the Board’s February 22, 2023 response, it stated, “…[a]s to Part 1, I have enclosed documents responsive to your request. As to Parts 2 and 3, this office is not in possession of documents responsive to these requests.” Current Appeal In his current appeal Mr. Norris suggested that the records pertaining to part 2 of his request could be found online. Based on the Board’s February 22nd response, it remains unclear if it possesses additional records responsive to the above request. Specifically, the Board must clarify whether it possesses records responsive to part 2 of 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). In accordance with the Public Records Law, 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). Consequently, the Board must clarify whether additional records exist. Conclusion Accordingly, the Board is ordered to provide Mr. Norris 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: Kevin Norris