Justice Ainooson v. Department of Correction (SPR 20240593)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 8, 2024 SPR24/0593 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Justice Ainooson 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 February 5, 2024, Mr. Ainooson requested, “…a copy of the minutes that Deputy . . . took of the January 25, 2024, visit with incarcerated individuals and State Representative . . ., that took place between the hours of 8:30 am – 1:00 pm.” On February 9, 2024, the Department responded and stated, “I am in receipt of your public records request for a copy of the minutes that Director of Classification . . . took of the January 25, 2024, visit with incarcerated individuals and State Representative . . ., that took place between the hours of 8:30 am – 1:00 pm. Please be advised that there are no records responsive to this request.” After receiving the Department’s February 9th response, Mr. Ainooson submitted a further request on February 20, 2024, seeking a copy of “…minutes, notes, writings (but not limited to) pertaining to the minutes that Deputy . . . took of the January 25, 2024, visit/meeting with State Representative . . . that took place between the hours of 8:30 am – 1:00 pm. The entire room was made aware that Deputy . . . was taking minutes and/or notes of the meeting and this can also be verified through the [I]nstitution’s video footage.” Claiming to not yet have received a response to the February 20th request, Mr. Ainooson petitioned this office and this appeal was opened. 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 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 SPR24/0593 Page 2 March 8, 2024 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. Current Appeal In his petition, Mr. Ainooson asserts regarding the Department’s February 9, 2024 response for meeting minutes, “…Superintendent Alves claimed that no records of this nature exists, which is false. Due to I was in attendance at the meeting with State Representative . . . and it was acknowledged that Deputy . . . was taking minutes of a privileged meeting between a [s]tate [r]ep and incarcerated individuals. Also enclosed [in the letter to this office] is a follow-up public records request, utilizing different terminology [Please see Attachment C].” In light of the above, it is unclear whether the Department is in possession of any records responsive to Mr. Ainooson’s February 20th request. The Department must clarify whether it is in possession of any records regarding the February 20th request, pertaining to the January 25, 2024 meeting at MCI-Norfolk. 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 the records requested exist, I find the Department must provide the records 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). Conclusion Accordingly, the Department is ordered to provide Mr. Ainooson with a response to his February 20th request in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. A copy of the 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. Ainooson may appeal the substantive nature of the response within 90 calendar days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR24/0593 Page 3 March 8, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Justice Ainooson