James Riva v. Department of Correction (SPR 20232387)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 23, 2023 SPR23/2387 Kate Silvia Director of Communications Executive Office of Public Safety & Security Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of James Riva, appealing the response of the Department of Correction (Department) to his request for public records. See G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On September 14, 2023, Mr. Riva requested the following records: [1.] Any and all emails to or from [three identified staff members] concerning the OCCC Masjid book and video order dating from May 1, 2023 to Sept. 14, 2023 and [2.] Any and all financial receipts, invoices, cancelled checks concerning the OCCC Masjid book and video order from May 1, 2023 to Sept. 14, 2023. The Department provided a response on September 25, 2023. Unsatisfied with the response, Mr. Riva petitioned this office and this appeal, SPR23/2387, 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(b)(iv); 950 C.M.R. 32.06(3); see also Dist. 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 SPR23/2387 Page 2 October 23, 2023 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. Current appeal In his appeal, Mr. Riva states that he was provided records related to a previous request to the Old Colony Correction Center, which was the subject of SPR23/2003. See SPR23/2003 Determination of the Supervisor of Records (September 8, 2023). Mr. Riva states that in the current request he is “asking for an enlarged and totally new time inclusion from May 1, 2023 to Sept. 14, 2023,” whereas the previous request “was from Nov. 1, 2022 to June 26, 2023.” He contends that all responsive records “have not been provided.” The Department’s September 25th response In its September 25, 2023 response, the Department states that Mr. Riva “[was] provided all responsive records from Program Services and OCCC.” Unclear if additional records exist Although the Department states that Mr. Riva has received all responsive records, based on his appeal, it is unclear if the Department possesses additional records responsive to the request. Specifically, the Department must clarify if it possesses records related to the time period provided by Mr. Riva in his September 14th 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 additional records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Riva 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 the response to this office at pre@sec.state.ma.us.

Kate Silvia SPR23/2387 Page 3 October 23, 2023 Sincerely, Manza Arthur Supervisor of Records cc: James Riva