Frederick Perry v. Department of Correction (SPR 20242260)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 23, 2024 SPR24/2260 Kate Silvia Director of Communications Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Frederick Perry 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 July 20, 2024, Mr. Perry requested the following records: copies of all licenses, registrations, credentials, and certifications for all persons who were employed by, Wellpath, LLC at the Massachusetts Correctional Institution at Norfolk located at 2 Clark St. in Norfolk, MA from July 1, 2018 through June 30, 2024. The Department responded on July 30, 2024. Unsatisfied with the response, Mr. Perry petitioned this office and this appeal, SPR24/2260, 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. 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 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 SPR24/2260 Page 2 August 23, 2024 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 30th Response The Department’s July 30, 2024 response states, “… [p]lease be advised that the Department is not the custodian of the records you seek. Please direct your request to Wellpath at the address noted below . . .” Current Appeal In his August 1st appeal Mr. Perry’s asserts, “… [p]ursuant to the contract between Wellpath, LLC and the [Department][,] Wellpath, LLC was to provide each and every document I requested [from the Department]. Accordingly, for [the Department] to say the [Department] is not the custodian of the records I requested is absolutely a false statement.” In light of Mr. Perry’s claim above, I find the Department must clarify whether it possesses the requested records. 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). The Department must clarify this matter. Conclusion Accordingly, the Department is ordered to provide Mr. Perry 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. Mr. Perry 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: Frederick Perry