Jose L. Negron v. Department of Correction (SPR 20231220)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 22, 2023 SPR23/1220 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 02056 Dear Ms. Silvia: I have received the petition of Jose Negron 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 April 13, 2023, Mr. Negron requested the Department’s quarterly substance abuse monitoring report for the years 2021 to 2023. The Department responded on April 24, 2023 and May 9, 2023. Unsatisfied with the Department’s responses, Mr. Negron petitioned this office and this appeal, SPR21/2120, 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. Attorney 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

Kate M. Silvia SPR23/1220 Page 2 July 22, 2023 The Department April 24th and May 9th Responses In its responses, the Department provided certain redacted documents. In its April 24, 2023 response, the Department stated, “... this is not a public records request. This is a CORI request. This information regarding other inmates is confidential.” In its May 9, 2023 response, the Department advised, “... there are no records responsive to your request at MCI-Norfolk or at the Department of Correction Central Office.” Current appeal In his appeal, Mr. Negron asserts that the Department “disclosed old record dated July 6, 2011 ...” Based on Mr. Negron’s claims, in conjunction with the Department’s responses, it is unclear if the Department possesses any additional records 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). However, custodians are expected to use their superior knowledge of the records in their custody to assist requestors in obtaining the desired information. See 950 C.M.R. 32.04(5). Consequently, the Department must clarify whether additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Negron with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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. Mr. Negron may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jose Negron