David Nathanson v. Department of Correction (SPR 20230601)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 6, 2023 SPR23/0601 Kate Silvia Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110-1327 Dear Ms. Silvia: I have received the petition of David Nathanson, Esq., of Wood & Nathanson, LLP, 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 March 30, 2023, Attorney Nathanson requested the aggregate number of the following: [1] emergency furlough requests from 7/1/2018 to present; and [2] the aggregate number of emergency furloughs that were granted from 7/1/2018 to present. See 103 C.M.R. 463.11. On March 30, 2023, the Department provided a response stating, “[p]lease be advised the process for submitting public records requests has changed. You will now be required to create an account in our new system . . . to send requests and receive responses.” As a result of the Department’s March 30th response, Attorney Nathanson petitioned the Supervisor of Records and this appeal was opened. In Attorney Nathanson’s March 30th petition, he asserts, “[m]y appeal is based on the following. I requested certain records via email. The [Department] refused to honor my request via email.” 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 SPR23/0601 Page 2 April 6, 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) (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. Public Records Request Format In its March 30th response, the Department informed Attorney Nathanson that he is required to create an account and make the request through the Department’s new web portal. The Department is advised, pursuant to 950 C.M.R. 32.06, “requests for public records may be made orally in person to a records access officer or custodian or may be written. . . . [W]ritten requests may be delivered by a requester to the business address or designated website or email address of a records access officer or custodian: 1. by hand; 2. by mail; 3. by electronic mail; or 4. by facsimile, if custodian has facsimile access.” See 950 C.M.R. 32.06(a), (c). Subsequent to the opening of his appeal, on March 31, 2023, the Department provided Attorney Nathanson with the responsive records, and on March 31st, Attorney Nathanson acknowledged that he has received the requested records. Conclusion Accordingly, whereas the Department has provided the requested records to Attorney Nathanson, I will consider this administrative appeal closed. Sincerely, Manza Arthur Supervisor of Records cc: David Nathanson, Esq.,