Fr. Robert Gaudreau v. Department of Correction (SPR 20242668)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records October 4, 2024 SPR24/2668 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 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 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]. Previous Appeal This request was the subject of a previous appeal. See SPR24/1997 Determination of the Supervisor of Records (July 26, 2024). In my July 26th determination, I ordered the Department to identify the records responsive to the request, and 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. Subsequently, the Department responded on July 26, 2024. Unsatisfied with the Department’s response, Fr. Gaudreau petitioned this office, and this appeal, SPR24/2668, 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 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 SPR24/2668 Page 2 October 4, 2024 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 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 September 17th Response In its September 17, 2024 response, the Department provides numerous responsive records, and cites the Criminal Offender Records Information (CORI) Act, as it operates through Exemption (a) of the Public Records Law, along with Exemptions (b) and (f) for redacting the responsive records. See G. L. c. 4, § 7(26)(a), (b), (f). Current Appeal In his appeal petition, Fr. Gaudreau contends that the Department’s “last email of 17 September is frivolous and irrelevant to my request.” He further argues that “in my request I seek no CORI information on anyone” and that the “long scan that [the Department] included is completely irrelevant to my request. No one document that I have requested is included in that scan.” He goes on to contend that “[i]n the entire scan, [the Department] fails to include the last document ... the final document is the Settlement agreement signed by both me and the DOC. In it there is a paragraph that states, ‘Neither party to this agreement bears liability or wrongdoing.’” In further correspondence to this office on September 27, 2024, Fr. Gaudreau argues that “[a]ll the documents requested by me are contained in one (1) file labeled with a number. There is not much research that is needed.” Upon review of the appeal petition and subsequent correspondence with this office, it appears that Fr. Gaudreau does not object to any redactions in the records he received, but only claims the Department possesses additional records responsive to his request. Possession, Custody, or Control The duty to comply with requests for records extends to those records that exist and are in

Kate Silvia SPR24/2668 Page 3 October 4, 2024 the possession, custody, or control of the custodian of records at the time of the request. See G. L. c. 66, § 10(a)(ii). Additionally, 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 information provided in Fr. Gaudreau’s appeal petition, it is unclear whether the Department possesses additional records responsive to his request. If the Department does possess the additional records, it must either provide them, 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. Sincerely, Manza Arthur Supervisor of Records cc: Fr. Robert Gaudreau