Edward O'Brien v. Department of Correction (SPR 20251968)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records July 14, 2025 SPR25/1968 Kate Silvia Director of Communications Massachusetts Department of Correction 50 Maple Street, Suite 3 Miilford, MA 01757 Dear Ms. Silvia: I have received the petition of Edward S. O’Brien appealing the response of the Massachusetts 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 1, 2025, Mr. O’Brien requested “[t]he total number of in-person visits that took place at NCCI-Gardner, MCI-Shirley, MCI-Norfolk, MCI- Framinham and SBCC in the years of 2019, 2020, 2021, 2022, 2023, and 2024. Please only count personal visits (i.e., only people on the Incarcerated Individuals approved visitation list) and not attorney or professional visits…” The Department provided a response on June 18, 2025. Unsatisfied with the Department’s response, Mr. O’Brien petitioned this office and this appeal, SPR25/1968, 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. See 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 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 SPR25/1968 Page 2 July 14, 2025 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. See 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 Deparment’s June 18th Response In its June 18, 2025 response, the Department stated, “… records responsive to this request are the subject of pending litigation in multiple forums: O’Brien v. Mici, et al., Suffolk Superior Court, C.A. No. 2284CV02129; O’Brien v. Divris, et al., Suffolk Superior Court, C.A. No. 2584CV00799.” Current Appeal In his appeal, Mr. O’Brien states, “RAO Silvia denied my request because pending litigation pertaining to visiting rules and regulations. The numbers that I requested are not the focus of the litigation. I believe RAO Silvia is using this [as] an excuse to not hand over numbers…” This office has reviewed the trial court’s docket and verified that the civil litigation relating to the requested records is active and ongoing in Suffolk Superior Court. See Edward S. O’Brien v. Carol A. Mici, et al. (Superior Court Docket No. 2284CV02129); see also Edward S. O’Brien v. Matthew Divris, et al. (Superior Court Docket No. 2584CV00799). Pending Litigation 950 C.M.R. 32.08(2)(b) provides in pertinent part: the Supervisor may deny an appeal for, among other reasons if, in the opinion of the Supervisor: 1. the public records in question are the subjects of disputes in active litigation, administrative hearings or mediation. In light of the pending litigation, I decline to opine on this matter at this time. See 950 C.M.R. 32.08(2)(b). It should be noted that a change in the status of this action could impact the applicability of 950 C.M.R. 32.08(2)(b).

Kate Silvia SPR25/1968 Page 3 July 14, 2025 Sincerely, Manza Arthur Supervisor of Records cc: Edward S. O’Brien