Michael Horrell v. Department of Correction (SPR 20242924)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 6, 2024 SPR24/2924 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 Michael Horrell, Esq., of Prisoners’ Legal Services, 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 September 17, 2024, Attorney Horrell requested the following records: [1] lists of people hired or fired by VitalCore (DOC’s contracted medical provider) that VitalCore is required to submit to DOC as part of their contract; [2] documents sufficient to identify the names and contact information of people the contract requires VitalCore to staff to provide services to DOC. The Department responded by updating the status of the request to, “[n]ot the Custodian of Record.” Unsatisfied with the Department’s response, Attorney Horrell petitioned this office and this appeal, SPR24/2924, 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. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of 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 SPR24/2924 Page 2 November 6, 2024 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. Current Appeal In his appeal to this office, Attorney Horrell states, “[d]espite following up on October 3, 2024 and October 15, 2024, I have received no written response or records. At some point after October 15, 2024, DOC updated to ‘status’ of the request on the portal to ‘Not the Custodian of the Record’ … The documents and information sought are clearly within DOC’s possession, custody, and control, as the contract requires VitalCore to provide the information to DOC. Further, it beggars belief that DOC is unaware of the identity or method of contacting people staffed pursuant to the contract, most of whom are providing medical treatment inside of DOC’s facilities and are therefore subject to DOC’s stringent admission protocols.” In light of Attorney Horrell’s appeal petition, I find the Department must clarify whether it possesses records responsive to the request. 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. Conclusion Accordingly, the Department is ordered to provide Attorney Horrell with a response to his request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten 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: Michael Horrell, Esq.