Emory Snell, Jr. v. Department of Correction (SPR 20241866)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 11, 2024 SPR24/1866 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 Emory Snell, Jr. 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 10, 2024, Mr. Snell requested: [1.] All reports, information, materials, communications, or every document regarding State Transportation on May 10, 2024, at 0725hr., dispatched to deliver [an identified individual] to Lemuel Shattuck hospital (LSH)…[;] [2.] All reports, information, materials, communications, or every document regarding May 10, 2024, specific to [an identified individual] for pick up from MCI-Shirley…[;] [3.] All reports, information, communication, transmittance, or everything concerning Wellpath’s contacting the Department of Correction (DOC) to arrange State Transportation on May 10, 2024 for [an identified individual] to LSH…[;] [4.] Everything accorded by c66, ss10b regarding the May 10, 2024…LSH… appointment for [an identified individual] between any State Agency, vendor, contractor, or party with any beneficial interest…[;] [5.] Any, and all information, material, communication, or policy permitting or assigning individual State Transportation employees authority to refuse, deny or otherwise ignore the task of delivery on May 10 2024…[;] [6.] All other information, materials, communications, policies, incident reports, or other documents pertaining to [an identified individual] in force on May 10, 2024, specifically regarding American [sic] w/Disabilities reasonable 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 SPR24/1866 Page 2 July 11, 2024 accommodations for a qualified handicapped individual, attributable to the DOC, or detailed by its Wellpath provider. The Department provided a response on June 3, 2024. Unsatisfied with the response, Mr. Snell petitioned this office and this appeal, SPR24/1866, 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 June 3rd Response In its June 3, 2024 response, the Department states, “there are no responsive records to [Mr. Snell’s] request other than” one responsive record it provides concerning a “log noted in the Central Transportation Records.” The Department further explains that it “is not the custodian of the records for Wellpath internal communications that were not sent or received by MA DOC employees.” Current Appeal In his appeal petition, Mr. Snell contends that the Department’s response “is ambiguous, insofar as, [sic] certain policies, customs and practices are in play, and not provided as per my public records [request].” Records in Existence; Possession, Custody, or Control 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.

Kate Silvia SPR24/1866 Page 3 July 11, 2024 L. c. 66, § 10(a)(ii). Further, 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). Based on the Department’s response and information provided in Mr. Snell’s appeal petition, it is unclear whether the Department possesses additional records responsive to Mr. Snell’s request. The Department must clarify this. Conclusion Accordingly, the Department is ordered to provide Mr. Snell with a response to his request 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: Emory Snell, Jr.