Robert W. Anderson, Jr. v. Department of Correction (SPR 20230507)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 24, 2023 SPR23/0507 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Robert W. Anderson Jr. 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 February 14, 2023, Mr. Anderson requested: 1. Keefe Commissary Bulk Commissary Catalog showing any/all items they have available for inmates to possibly purchase and which is used by DOC’s Property Committee and Superintendents making decisions on item availability; and 2. Office of the State Auditor’s Audit of the Massachusetts Dept. of Correction in 2020. The Department provided a response on February 22, 2023. Unsatisfied with the response, Mr. Anderson petitioned this office and this appeal, SPR23/0507, 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 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 SPR23/0507 Page 2 March 24, 2023 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. 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 22nd response In its February 22, 2023 response, the Department provided responses as follows: Item 1 In response to the first part of the request, the Department stated, “[p]lease be advised that there is no record in the possession, control or custody of the [Department] that is responsive to this request. The Department has not received a Keefe catalog nor has the Director of Support Services requested one.” Item 2 The Department provided Mr. Anderson with records responsive to the second part of his request. No Duty to Create Records Under the Public Records Law, there is no obligation 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 information extends only 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 an email dated March 17, 2023, the Department informed a staff attorney of the Public Records Division that “… the requested record [in Item 1] was the subject of another appeal. Please see decision of the Supervisor SPR23/0324.” In SPR23/0324, the Department confirmed that it had no responsive records. See SPR23/0324 Determination of the Supervisor of Records (February 27, 2023). Conclusion Where the Department has provided records responsive to Item 2 of the request, and has indicated that it has no records responsive to Item 1 of the request, I will now consider this administrative appeal closed. If Mr. Anderson is not satisfied with the resolution of this administrative appeal, he is advised that this office shares jurisdiction with the Superior Court of

Kate Silvia SPR23/0507 Page 3 March 24, 2023 the Commonwealth. See G. L. c. 66 § 10(A)(c). Sincerely, Manza Arthur Supervisor of Records cc: Robert W. Anderson Jr.