Emmett S. Muldoon v. Department of Correction (SPR 20232925)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 18, 2023 SPR23/2925 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 Emmett S. Muldoon 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 October 13, 2023, Mr. Muldoon requested the following records: [1.] A copy of each grant, loan, or contract representing federal financial assistance, received directly or indirectly (as through the Executive Office of Public Safety (EOPSS)) and through the use of any Interdepartmental Service Agreement (ISA)[;] [2.] A copy of the Department of Correction’s drug-free awareness program or policy, or similarly worded document, as required under the Drug-Free Workplace Act, 41 U.S.C., §§ 8101 et seq.[;] [3] A copy of a blank drug-free workplace statement, as used by the DOC and required to be provided to each DOC employee, as described under 28 CFR Part A, subpart B, § 83.205(a)-(c)(1),(2)[;] [4.] The names, job description, and actions taken against each DOC employee who have been convicted of drug violations in violation of 41 U.S.C., § 8101 et seq., and identify each Federal agency notified in accordance with the requirements of 41 U.S.C., § 8103(a)(1)(A)-(G). This request # 4, has a separate time line. For each action and notification, I am requesting a time frame beginning in 2010 through the 2023 date of your reply[.] 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 SPR23/2925 Page 2 December 18, 2023 Prior Appeal This request was the subject of a prior appeal. See SPR23/2687 Determination of the Supervisor of Records (November 10, 2023). Subsequent to the opening of SPR23/2687, I learned that the Department provided a response to Mr. Muldoon on November 7, 2023, and closed the appeal. Unsatisfied with the Department’s November 7th response pertaining to Item 4 of the request, Mr. Muldoon petitioned this office, and this appeal, SPR23/2925, 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) (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 November 7th response In the Department’s November 7, 2023 response, the Department provided records responsive to Mr. Muldoon’s Items 1, 2 and 3. With regard to Item 4, the Department states, “[p]lease be advised that there are no responsive records to your request. Staff discipline cannot be queried by category (i.e., violation of drug free work policy).” Based on the Department’s response, it is unclear whether it 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). In accordance with the Public Records Law, 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). Accordingly, the Department must clarify whether it possesses records responsive to Item 4 of the request.

Kate Silvia SPR23/2925 Page 3 December 18, 2023 Conclusion Accordingly, the Department is ordered to provide a response to Mr. Muldoon, 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: Emmett S. Muldoon