Joseph Piard v. Department of Correction (SPR 20241887)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 15, 2024 SPR24/1887 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[.]” Previous Appeal This request was the subject of a previous appeal. See SPR24/1644 Determination of the Supervisor of Records (June 13, 2024). In my June 13th determination, I ordered the Department to clarify whether it possesses records responsive to the request. Subsequently, the Department responded on June 21, 2024. Unsatisfied with the Department’s response, Mr. Piard petitioned this office and this appeal, SPR24/1887, 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. 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 SPR24/1887 Page 2 July 15, 2024 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. The Department’s June 21st response In its June 21, 2024 response, the Department states, “[p]lease be advised that there are no responsive records to your request. Video surveillance tapes are not retained in the normal course of business unless preserved for evidentiary purposes or preservation order.” Current Appeal In his current appeal, Mr. Piard contends that the Department “did not [provide] a clear and understandable response on why the video surveillance tape does not exist.” In a telephone conversation between a staff member of the Public Records Division and a representative of the Department on July 10, 2024, the Department confirmed it does not possess any records responsive to Mr. Piard’s request. Where the “[v]ideo footage” Mr. Piard requested may have existed at some point in time, and the Department has responded that “[v]ideo surveillance tapes are not retained in the normal course of business unless preserved for evidentiary purposes or preservation order[,]” I find the Department must explain in writing whether it complied with the Public Records Law and the Statewide Records Retention Schedule in destroying the records. Conclusion Accordingly, the Department is ordered to provide Mr. Piard 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: Joseph Piard