Darius Gibson v. Department of Correction (SPR 20240652)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records March 14, 2024 SPR24/0652 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Darius Gibson appealing the response of the Massachusetts 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 January 25, 2024, Mr. Gibson requested: [1.] All documentation from 1-9-23 of [an identified individual] speaking to me regarding a prea investigation[;] [2.] All documentation I called internal affairs 1-11-23[;] [3.] Documentation with redactions as to why I.P.S. searched my property 2-7- 23[.] Previous Appeal The requested records were the subject of a previous appeal. See SPR 24/0506 Determination of the Supervisor of Records (February 27, 2024). In my February 27, 2024, determination, I learned the Department provided a response to Mr. Gibson on February 21, 2024. Unsatisfied with the response, Mr. Gibson petitioned this office and this appeal, SPR 24/0652, 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 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 SPR24/0652 Page 2 March 14, 2024 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. See 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 February 21st Response In its February 21, 2024 response, the Department stated: [1.] Please be advised there are no responsive records to this request. [2.] Enclosed please find the records responsive to your request. [3.] Please be advised you were previously provided with this documentation on June 7, 2023. I have included an additional copy as a courtesy. Current Appeal In his appeal petition, Mr. Gibson stated, “I’m appealing this response specifically request 3.” The Department’s February 21, 2024 response did not contain the specificity required in a denial of access to public records. The Department redacted portions of the records without claiming any exemption(s) in the Public Records Law that would support the redacting of the responsive records. 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. As a result, I find that the Department did not satisfy its burden in responding to this records request. Consequently, the Department must identify an exemption that applies to withhold portions of the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. Gibson with a response to the request, provided in a manner consistent with this order, the Public Records Law and its

Kate Silvia SPR24/0652 Page 3 March 14, 2024 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. Mr. Gibson may appeal the substantive nature of the Department’s response within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Darius Gibson