Sam Thomas v. Department of Correction (SPR 20230705)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records April 25, 2023 SPR23/0705 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Attorney Sam Thomas, of Morgan, Lewis & Bockius LLP, on behalf of Scott Allen, of the Boston Globe, 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 July 29, 2022, Mr. Allen requested “… all written decisions from January 1, 2019 through February 1, 2022 which resulted from disciplinary proceedings that involved confirmatory testing of suspected synthetic cannabinoid samples by the UMass Drugs of Abuse Lab [and] [a]ll evidence relied upon in the hearing officer’s findings and recommended sanctions.” Previous appeals This request was the subject of previous appeals. See SPR22/0808 Determination of the Supervisor of Records (April 19, 2022); SPR22/2010 Determination of the Supervisor of Records (September 16, 2022) and SPR22/2803 Determination of the Supervisor of Records (December 20, 2022). The Department responded on January 27, 2023. Unsatisfied with the response, Attorney Thomas petitioned this office and this appeal, SPR23/0705, 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 M. Silvia SPR23/0705 Page 2 April 25, 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 Department’s January 27th response In its January 27, 2023 response, the Department advised that there is active litigation. See Green, et al. v. Department of Correction, et al. Suffolk Superior Court, Docket No. 2184CV2283. Pending litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In its response, the Department asserts, “... the records originally requested on July 29, 2022, remain central to the litigation in Green, et. al vs. Massachusetts Department of Correction and Carol Mici, Docket No. 2184-cv-2283. As of today’s date, the Green matter remains open and in active litigation, and the discoverability of documents which may be responsive to your request remains at issue.” Although the Department confirmed that the litigation is still pending and the records are related to the litigation, it is unclear how all the requested decisions are related to the pending litigation. The Department must clarify. Conclusion Accordingly, the Department is ordered to provide Attorney Thomas with said response in a manner consistent with this order, the Public Records Law, and its Regulations within 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. Attorney Thomas may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Kate M. Silvia SPR23/0705 Page 3 April 25, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Sam Thomas, Esq.