Susan Baronoff v. Department of Correction (SPR 20232607)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 8, 2023 SPR23/2607 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 Attorney Susan Baronoff 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 September 11, 2023, Ms. Baronoff requested, “[r]ecordings of phone conversations between [a named individual] and his daughter . . . and his son . . . from January 2022 through July 2023.” Prior Appeal This request was the subject of a prior appeal. See SPR23/2249 Determination of the Supervisor of Records (October 4, 2023). In my October 4th determination, I found that the Department did not meet its burden to withhold the records under Exemption (c) of the Public Records law. The Department provided a response on October 26, 2023. Unsatisfied with the Department’s response, Attorney Baronoff petitioned this office and this appeal, SPR23/2607, 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 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 SPR23/2607 Page 2 November 8, 2023 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). 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 October 26th Response In its October 26, 2023 response, the Department stated, “[p]lease be advised that because the telephone recordings are not public records, [the Department] will need a copy of the Probate Court appointment of [a named individual] as personal representative of the estate, as the telephone calls can only be released to the court appointed personal representative of the estate so that we can identify and obtain these calls from [the Department]’s contracted phone service provider.” Current appeal In her appeal, Attorney Baronoff states, “[the Department] has reverted to its original position that the recordings are not public records… [the Department’s] position that the phone recordings are not public records has no merit. Furthermore, because [a named individual] has died, there is no legitimate concern for his own privacy or CORI rights.” Based on the Department’s response and Attorney Baronoff’s appeal, it is unclear what exemption under the Public Records Law the Department is claiming to withhold the requested records from disclosure. 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). To the extent that the requested records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Burden of specificity; duty to segregate Under the Public Records Law, the burden shall be upon the custodian to prove with specificity the exemption which applies. G. L. c. 66, § 10(b)(iv); see also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department did not meet its burden of demonstrating how the responsive records are exempt from disclosure under the Public Records Law. See Reinstein v. Police Comm’r of Boston, 378 Mass. 281, 289-

Kate Silvia SPR23/2607 Page 3 November 8, 2023 90 (1979) (the statutory exemptions are narrowly construed and are not blanket in nature). The Department must produce any non-exempt, segregable portions of the public records. G. L. c. 66, § 10(a). Conclusion Accordingly, the Department is ordered to provide Attorney Baronoff 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. Sincerely, Manza Arthur Supervisor of Records cc: Susan Baronoff, Esq.