Robert Cantell v. North Central Correctional Institute (SPR 20232070)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records September 14, 2023 SPR23/2070 Kate M. Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 02056 Dear Ms. Silvia: I have received the petition of Robert Cantell 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 August 20, 2023, Mr. Cantell requested the following records: [1.] ... color photos and other photos relating to certain evidence; [2.] Incident report #2200820...; [3.] Copies of the photos referred to in NCCI Incident report #2160154... The Department responded on August 22, 2023. Unsatisfied with the Department’s response, Mr. Cantell petitioned this office and this appeal, SPR23/2070, 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 town 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 SPR23/2070 Page 2 September 14, 2023 The Department August 22nd Response In its August 22, 2023 response, the Department stated, “[t]his request should be to the records department.” Unclear if records exist Based on Mr. Cantell’s appeal and the Department’s response, it is unclear if the Department possesses 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). 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 the requested records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Cantell 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 the response to this office at pre@sec.state.ma.us. Mr. Cantell 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: Robert Cantell