Lori Clark v. Department of Correction (SPR 20230608)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 13, 2023 SPR23/0608 Laurie Buffery DOC Records Manager Department of Corrections Bridgewater State Hospital 20 Administration Road Bridgewater, MA 02324 Dear Ms. Buffery: I have received the petition of Lori Clark 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 March 14, 2023, Ms. Clark requested “any information you may have on [an identified individual].” On March 21, 2023, the Department provided a response, which included responsive records that had been redacted. Unsatisfied with the Department’s response, Ms. Clark petitioned this office and this appeal, SPR23/0608, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). 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

Laurie Buffery SPR23/0608 Page 2 April 13, 2023 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 March 21st Response In its March 21, 2023 response, the Department stated that “[h]ere is the redacted file that I sent you back on September 23, 2022.” Current Appeal In her current appeal, Ms. Clark asserts, “I ask you to please allow me to view these records, in full or with fewer redactions[.]” Burden of specificity in claiming exemptions Under the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. 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 . . .”); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. See also Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). Based on the above, it is unclear what exemption(s) or legal basis under the Public Records Law, the Department is claiming to redact the responsive records. Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 10(b)(iv). As such, I find the Department did not satisfy its burden in responding to this records request. The Department must state an exemption under the Public Records Law, that permits it to redact the information. Conclusion Accordingly, the Department is ordered to provide Ms. Clark 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. Ms. Clark may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Laurie Buffery SPR23/0608 Page 3 April 13, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Lori Clark Kate Silvia