Darius Gibson v. Department of Correction (SPR 20231481)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 12, 2023 SPR23/1481 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Darius Gibson 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 January 20, 2023, Mr. Gibson requested the following records: 1. All documentation in inmate management system showing the names of correctional officers who have researched me and what they have researched about me for the years 2022, 2023[;] 2. [C]opies of all complaints with complaint names redacted made against [named correctional officers;] 3. Disciplinary history for [three named correctional officers.] Previous Appeals This request was the subject of previous appeals. See SPR23/0381 Determination of the Supervisor of Records (March 13, 2023) and SPR23/0709 Determination of the Supervisor of Records (April 25, 2023). In my April 25th determination, I ordered the Department to provide Mr. Gibson with a response to his request. On June 9, 2023, the Department responded. Unsatisfied with the Department’s response, Mr. Gibson petitioned this office and this appeal, SPR23/1481, 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 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 SPR23/1481 Page 2 July 12, 2023 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). 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 June 9th Response In its June 9, 2023 response, the Department states, “[a]s you are aware, you have active litigation (Gibson v. Hayden, Phelps, 2385CV00167) against the Officers noted above. Therefore, you may request the above noted material through discovery in court.” Current Appeal In his appeal, Mr. Gibson states, “I’m appealing this response I requested these documents for court purpose via public records so that I could save time and effort having to request the documents from court[.]” 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. Under the Public Records Law, the burden shall be upon the records custodian to identify records being withheld and prove with specificity an exemption which applies. 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);

Kate Silvia SPR23/1481 Page 3 July 12, 2023 Flatley, 419 Mass. at 511. Consequently, I find the Department did not meet its burden of specificity in responding to the records request. Conclusion Accordingly, the Department is ordered to provide Mr. Gibson 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. Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson