Fr. Robert Gaudreau v. Department of Correction (SPR 20241997)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 26, 2024 SPR24/1997 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Fr. Robert Gaudreau appealing the response of 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 July 8, 2024, Fr. Gaudreau requested: DOC-MCI-N-23-21: all confidential incidents report authored by [3 identified individuals], provided to commissioner hearing officer on June 16 and 21, 2023. Also a meeting report from a meeting with [two identified individuals]… dated September 13, 2022. A copy of the hearing officer’s report summarizing the Commissioner’s hearing of June 16, and 21, 2023. Copies of the two (2) videos brought to hearing, both dated 9 February, 2023. Copies of the six (6) persons interviewed [6 identified individuals]. The Department responded on July 11, 2024. Unsatisfied with the Department’s response, Fr. Gaudreau petitioned this office and this appeal, SPR24/1997, was opened as a result. Status of Requestor Please note that the reason for which a requestor seeks access to or a copy of a public record does not afford any greater right of access to the requested information than other persons in the general public. The Public Records Law does not distinguish between requestors. Access to a record pursuant to the Public Records Law rests on the content of the record and not the circumstances of the requestor. See Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Fr. Gaudreau’s status will play no role in a determination as to whether the records should be disclosed or redacted under the Public Records Law. 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 SPR24/1997 Page 2 July 26, 2024 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. 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 July 11th response In its July 11, 2024 response, the Department asserted, “[p]lease be advised that much of the information you have requested is not public record and if provided in the public record process will be heavily redacted with no video nor CORI information (incarcerated individuals interview). You were provided with all documents and voice recordings related to your Commissioner’s Hearing Case #: DOC-MCI-N-32-31, Charge Letter dated May 31, 2023. It was provided via email from your Union on June 1st and June 2nd of 2023. And, as you know, that matter was settled via Settlement Agreement which was executed on December 15, 2023.” The Department also provided the contact information for the referenced Union. Current Appeal Fr. Gaudreau indicated in his appeal that the Department did not provide all documents via email to the referenced union and further asserted, “…they are my personal records. I am entitled to documents that were used against me at the hearing but never provided neither at the hearing nor since to me or the union.” Further, Fr. Gaudreau states, “I have spoken to the union representative who was present at the hearing. She has stated that she does not have these documents.” Additionally, Fr. Gaudreau states, “[The Department] states ‘much of the information that you have requested [is not public records and if provided … will be heavily redacted….]’ Much not all. The [Department] should provide that information that it is permitted to be given to me.”

Kate Silvia SPR24/1997 Page 3 July 26, 2024 Possession, Custody or Control; Records in Existence 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). However, 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’s July 11, 2024 response did not contain the specificity required in a denial of access to public records. The Department stated that much of the requested records are not public records and that no CORI information would be provided, without claiming any exemption(s) in the Public Records Law that would support the withholding 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 the records from disclosure. G. L. c. 66, § 10(b). Based on the information provided in Fr. Gaudreau’s appeal petition, in conjunction with the Department’s response, it is unclear what responsive records the Department possesses that are responsive to this request. If the Department does possess responsive records, it must either provide the records, or cite an exemption to the Public Records Law, and explain with specificity how such an exemption applies to withhold or redact the records. See G. L. c. 66, § 10(b)(iv) (a 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”). Conclusion Accordingly, the Department is ordered to provide Fr. Gaudreau with a response to the request, provided 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. Fr. Gaudreau may appeal the Department’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Fr. Robert Gaudreau