Alexa Podalsky v. Department of Correction (SPR 20240052)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records January 19, 2024 SPR24/0052 Kate Silvia Communications Director Department of Correction Executive Office of Public Safety and Security 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Alexa Podalsky 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 23, 2023, Ms. Podalsky requested the following records: [1.] Any and all communications and/or records that refer to smuggles contraband and/or controlled substances from the years 2019, 2020, 2021, and 2022 from MCI[-]Norfolk and/or other correctional institutions within the state of Massachusetts. [2.] Any and all communications and/or records that refer to the professional standards unit report at MCI-Norfolk regarding the illegal smuggling of contraband and/or controlled substances. [3.] Any and all records, including disciplinary reports, against any employees of the Department of Correction regarding any and all of these incidents at MCI- Norfolk and/or other correctional institutions within the state of Massachusetts. Prior Appeal This request was the subject of a prior appeal. See SPR23/2732 Determination of the Supervisor of Records (November 22, 2023). In my November 22nd determination, I found that it was unclear whether the Department had provided a response. The Department provided a response on December 22, 2023. Unsatisfied with the response, Ms. Podalsky petitioned this office and this appeal, SPR24/0052, was opened as a result. 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 SPR24/0052 Page 2 January 19, 2024 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, § l0A(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. 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. 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 December 22nd Response In its December 22, 2023 response, the Department provided a document and stated, “[t]here is no report generated by MCI-Norfolk or the Professional standards Unit regarding smuggled contraband. There were reports done by the Office Investigative Services regarding contraband introductions through the mail system which I have enclosed. Disciplinary reports are written for incarcerated individuals, not staff members. If you are inquiring about discipline for staff members stemming from the introduction of contraband, as previously noted, this is not tracked by category. Staff discipline is tracked by the individual member.” Current appeal In her appeal, Ms. Podalsky states, “I received one piece of documentation from [the Department] from 2017, but my request sought documentation from 2019 to 2022. I would like to see if there is any more modern documentation done by the OSI to show the extent of smuggling cases in Massachusetts prisons.” In light of the claims made by Ms. Podalsky, it is unclear if the Department possesses additional records that may be responsive to the request. Particularly, it is uncertain if the Department possesses records within the timeframe stated in Ms. Podalsky’s 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). To the extent that responsive records exist, I find the Department must provide them in

Kate Silvia SPR24/0052 Page 3 January 19, 2024 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). Conclusion Accordingly, the Department is ordered to provide Ms. Podalsky with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within 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: Alexa Podalsky