Peter J. Chongarlides v. Department of Correction (SPR 20243003)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records November 18, 2024 SPR24/3003 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 Peter Chongarlides 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 October 8, 2024, Mr. Chongarlides requested a copy of his attorney visiting log for 2024, both in person visits and Zoom visits, listing the date, time, and duration of said attorney visits. On October 16, 2024, the Department provided a response. Unsatisfied with the Department’s response, Mr. Chongarlides petitioned this office and this appeal, SPR24/3003, was opened as a result. Status of the requestor; reason for the request 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 G. L. c. 66, § 10(a); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Accordingly, Mr. Chongarlides’ status has no bearing on the public nature of any existing responsive records. 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 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 SPR24/3003 Page 2 November 18, 2024 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 October 16th Response In its October 16, 2024 response, the Department asked that Mr. Chongarlides “[f]ill out a CORI release form and request what [he is] looking for.” Current Appeal In his appeal, Mr. Chongarlides stated, “[t]he information requested, is not, C.O.R.I. protected as [a named individual] purports. It is the mass.Dept.of Correction’s way to deter and/or restrict Incarcerated Individuals from obtaining copies of their records, generated by the Mass.Dept.of Correction.” Based on Mr. Chongarlides’ appeal and the Department’s response, it is unclear if the Department possesses records responsive to the request. The duty to comply with requests for records extends to those 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). Consequently, the Department must clarify whether the requested records exist. Conclusion Accordingly, the Department is ordered to provide Mr. Chongarlides with a response to the 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. Mr. Chongarlides may appeal the substantive nature of the Department’s response within ninety days. See 950 C.M.R. 32.08(1).

Kate Silvia SPR24/3003 Page 3 November 18, 2024 Sincerely, Manza Arthur Supervisor of Records cc: Peter Chongarlides