Jose L. Negron v. Department of Correction (SPR 20243366)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records December 27, 2024 SPR24/3366 Kate Silvia Records Access Officer Department of Correction 50 Maple Street, Suite 3 Milford, MA 01757 Dear Ms. Silvia: I have received the petition of Jose L. Negron 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 August 5, 2024, Mr. Negron requested: [T]he following stats, data, information, documents, incident report of the following: 1. MCI - Norfolk ... Stats into the codes 99 responding to drug overdoses from 2018-2024. 2. MCI - Norfolk Stats into the codes 99 and Norfolk fire / ambulance Response due to overdoses cases. 3. Incident reports filed by Prison Guards/Medical department. The Department responded on August 19, and August 27, 2024. Unsatisfied with the Department’s response, Mr. Negron petitioned this office, and this appeal, SPR24/3366, 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, 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 SPR24/3366 Page 2 December 27, 2024 § 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. Current Appeal In his appeal petition, Mr. Negron argues, among other things, the following: It[’]s clear here, that both agency/department has made it unfair and unreasonable to have access to information, that the Boston Globe and Massachusetts Correctional Officer Federate Union on November 17, 2024 disclose in a new article about the uptick in overdoses and K2 at MCI-Norfolk facility. . . . Non[e] of the requested material, information or documents are exempt from Mass.Gen.Law.ch.4 sec.7(26) and non[e] of the Incident Record or Report have any personal information nor these incident report are consider internal, and no investigation exist as of today not to disclose the documents unredacted by the agency, and without any filing fees. The Department’s August 19th and August 27th Responses In its August 19, 2024 response, the Department indicated that it does not possess records responsive to Items 1 and 2 of the request, and requested clarification concerning Item 3 of the request. In its August 27, 2024 response, the Department reiterates its explanations concerning each item of the request. Possession, Custody, or Control 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). Under the Public Records Law, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Att’y Gen. 157, 165 (May 18, 1977). 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).

Kate Silvia SPR24/3366 Page 3 December 27, 2024 Item 1 In its August 19th response, regarding Item 1, the Department states that “there are no records responsive to your request. The Department does not maintain statistical data pertaining to Code 99s.” In its August 27th response, the Department further explains that “there are no responsive records as data is not tracked as requested as type of Code 99 is not tracked. [sic]” Item 2 In its August 19th response, the Department indicates it does not possess records responsive to Item 2, and in its August 27th response, further elaborates “that there are no responsive records as data is not tracked as requested. The type of medical emergency for ambulance calls is not tracked.” Where the Department has confirmed that it does not possess records responsive to Items 1 and 2 of the request, I find that these portions of Mr. Negron’s appeal are resolved. Reasonable Description of the Records Sought In Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, the Suffolk Superior Court, in its Memorandum of Decision and Order on Defendants’ Motion to Dismiss, stated: [The requester] has a right to seek public records from his government, provided he does so in a reasonable manner. [The agencies], in turn, have a right not to be inundated with drain-the-ocean records requests, provided they fulfill the basic expectations of the [Public Records Law] in a fair and transparent manner. See Friedman v. Division of Administrative Law Appeal and Bureau of Special Education Appeals, Suffolk Sup. No. 2284CV02061-C, at 3 (February 14, 2023). The Court in Friedman noted, “the extraordinary volume of records called for in this case has compelled the Defendants to produce responsive materials in a ‘rolling’ fashion, rather than in accordance with deadlines contemplated by the [Public Records Law].” Id. at 1. The Court stated that: [T]he parties shall be expected to agree upon, to the greatest extent possible, the following: (a) appropriate definitions, time frames, and parameters regarding substance and scope for the identification of requested documents; (b) appropriate search terms to be used for the retrieval of responsive documents; (c) a reasonable time frame for the production of requested documents, if the statute’s presumptive deadlines are not realistic; (d) appropriate rules to govern the withholding of documents falling within the scope of a statutory privilege or privacy doctrine; and

Kate Silvia SPR24/3366 Page 4 December 27, 2024 (e) an appropriate methodology for computing the reasonable fees that may be charged for responsive document production. Id. at 2. Item 3 In its August 19th response, regarding Item 3, the Department states that “this request is overly vague.” The Department asks Mr. Negron “[a]re you seeking MCI-Norfolk incident reports pertaining to Code 99s? Please provide a more specific request that can be reviewed for cost estimate.” In its August 27th response, the Department further explains “that there were 3,924 incident reports for Code 99s written during the requested timeframe at MCI-Norfolk. The type of Code 99 cannot be queried.” This office encourages Mr. Negron and the Department to communicate directly in order to facilitate providing records more efficiently and affordably. See G. L. c. 66, § 10(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce the records sought more efficiently and affordably). Conclusion If outstanding issues remain after Mr. Negron and the Department communicate further as described above, Mr. Negron may file an appeal within ninety (90) days. See 950 C.M.R. 32.08(1). Sincerely, Manza Arthur Supervisor of Records cc: Jose L. Negron