Edward Gajka v. Department of Correction (SPR 20231204)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 20, 2023 SPR23/1204 Kate Silvia Communications Director Department of Correction Legal Division 70 Franklin Street, Suite 600 Boston, MA 02110 Dear Ms. Silvia: I have received the petition of Edward Gajka 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 27, 2023, Mr. Carrier requested, “a copy of all substitutes on the dialysis meals from 02/10/23 to 03/27/23… copies of signed paper worked that ok such changes and… the approved departmental substitution guidelines for Dialysis meal.” Prior Appeal This request was the subject of a previous appeal. See SPR23/0875 Determination of the Supervisor of Records (May 16, 2023). In my May 16th determination, I found that the Department provided a response to Mr. Gajka and closed the appeal. The Department provided a response on April 5, 2023. Unsatisfied with the Department’s response, Mr. Gajka petitioned this office and this appeal, SPR23/1204, 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 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 SPR23/1204 Page 2 June 20, 2023 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. The Department’s April 5th Response In its April 5, 2023 response, the Department provided the Dialysis diet guidelines and stated, “[t]here are a handful of substitutions that we have made… All have been presented to the dieticians prior to placing them in operation. The juice packets… and the mixing of gravy and protein… have all been presented to the dietician and approved on occasion… Outside of those changes, I do not approve any deviations to the written Dialysis menu. If there have been substitutions, they have been outside my knowledge, and without my approval… the documentation of approved substitutions from the kitchen does not exist.” Current appeal In his appeal, Mr. Gajka stated, “[the Department] said that there is no approved substitution guidelines in the kitchen… in his answers in some of his informal complaints he cites approved departmental substitutes guidelines. There is more than just the two that he said he approved[.] I have filed a number of informal complaints and almost everyone that he change the menu and said the Dietitian okay the change.” In light of the claims made by Mr. Gajka, it is unclear whether the Department possesses additional records that may be responsive to 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). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Gajka 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.

Kate Silvia SPR23/1204 Page 3 June 20, 2023 Sincerely, Manza Arthur Supervisor of Records cc: Edward Gajka