Joseph Piard v. Department of Correction (SPR 20241644)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records June 13, 2024 SPR24/1644 Kate Silvia Director of Communications Records Access Officer Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Joseph Piard 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 May 14, 2024, Mr. Piard requested a specific “[v]ideo footage… of the West Recreation Yard at NCCI Gardener on Wednesday June 14, 2023, from 1:00 pm… till 4:00 pm[.]” The Department responded on May 20, 2024. Unsatisfied with the response, Mr. Piard petitioned this office and this appeal, SPR24/1644, 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); 950 C.M.R. 32.06(3); see also Dist. Att’y 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. 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 SPR24/1644 Page 2 June 13, 2024 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 May 20th Response In its May 20, 2024 response, the Department states, “there are no responsive records to [Mr. Piard’s] request.” Current Appeal In his appeal, Mr. Piard explains, “Under the Massachusetts Public Records Law… I am entitled to be provided an explanation in writing the reason why the video I am requesting… does not exist.” Based on Mr. Piard’s appeal, it is unclear if the Department possesses any 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). 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). The Department must clarify whether it possesses records responsive to the request. Conclusion Accordingly, the Department is ordered to provide Mr. Piard 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 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. Piard 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: Joseph Piard