Michael Hayes v. Department of Correction (SPR 20251962)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 17, 2025 SPR25/1962 Kate Silvia Director of Communications Department of Correction 50 Maple Street Milford, MA 01757 Dear Director Silvia: I have received the petition of Michael Hayes 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 June 20, 2025, Mr. Hayes requested: All correspondences which includes email, letters, documents, and notes, regarding and or related to [a named individual] that occurred between any Massachusetts Department of Corrections Employees which includes I.P.S. Inner Permiter Security and Special Investigations with any employee of the Middlesex District Attorney’s Office which includes Middlesex Assistant District Attorneys [two identified individuals] and also with any employees from the Federal Bureau of Investigations and with any employee from the Massachusetts Attorney General’s Office. The Department provided a response on June 24, 2025. Unsatisfied with the Department’s response, Mr. Hayes petitioned this office and this appeal, SPR25/1962, 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). 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 SPR25/1962 Page 2 July 17, 2025 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 June 24th Response In its June 24, 2025 response, the Department states, “documents pertaining to yourself are not public record requests. You may submit your request to the departments listed in your letter for specific documents pertaining to you.” The Department is advised that under the Public Records Law, the burden shall be on the custodian to establish the applicability of an exemption to withhold or redact 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”). See also Globe Newspaper Co. v. Police Comm’r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. The Department’s June 24th response did not contain the specificity required in a denial of access to public records. Additionally, it is unclear if the Department 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). To the extent that responsive records exist, I find the Department must provide them in a manner consistent with the Public Records Law or identify an exemption that applies to withhold the records from disclosure. G. L. c. 66, § 10(b). Conclusion Accordingly, the Department is ordered to provide Mr. Hayes 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.

Kate Silvia SPR25/1962 Page 3 July 17, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Michael Hayes