William McDonagh v. Department of Correction (SPR 20252203)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 8, 2025 SPR25/2203 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 William McDonagh 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 May 25, 2025, Mr. McDonagh requested: [1] A copy of any report or order from the MA State Fire Marshall within the last 5 years that state or orders that the use of live flame candles are not to be used in any building or chapel within the Department of Corrections. [2] A copy of any report or order from the MA Department of corrections within the last 5 years that state or orders that live flame candles are not to be used in any building or chapel within the Department of corrections. [3] A Copy of any report or order from the Gardner Fire department or Gardner fire inspector within the last 5 years that state or orders that the use of live flame candles are not to be used in any building or chapel located at 500 Colony Rd. (NCCI). [4] A copy of any report or order generated from any officer Administration personnel, Department head etc. . . that order or report that has been made with regard to the use of live fire candles are not to be used within any building located at NCCI 500 Colony Rd. by any officer, Administration personnel, Department head etc. . . from Gardner within the last 5 years [sic]. 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 SPR25/2203 Page 2 August 8, 2025 Previous Appeal This request was the subject of a previous appeal. See SPR25/1925 Determination of the Supervisor of Records (July 15, 2025). In my July 15th determination, I closed SPR25/1925 in light of the Department providing Mr. McDonagh with a written response on June 20, 2025. Unsatisfied with the Department’s response, Mr. McDonagh petitioned this office, and this appeal, SPR25/2203, 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. 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. The Department’s June 20th Response In its June 20, 2025 response, the Department provides Mr. McDonagh with a copy of a letter from the Gardner Fire Department, in redacted form, and also provides citations to sections of the Massachusetts Comprehensive Fire Safety Code and the Massachusetts State Building Code relating to issues raised in Mr. McDonagh’s request. Current Appeal In his appeal petition, Mr. McDonagh contends that the Department “has not provided what was in the request,” and argues the following: With regards to the letter from the Gardner Fire Dept., This letter was sent to a Inmate, not to any DOC employee or State Official. There is no records sent to support any inspection done by the State Fire Marshall or the Gardner Fire Dept that Support the alleged facts in this letter.

Kate Silvia SPR25/2203 Page 3 August 8, 2025 When the DOC install the new Smoke Detectors, they placed one of the devices right in front of the alter where the candles are placed. The DOC Employees claim that there have been several reports (written?) of the Smoke detectors going off, yet they cannot or will not produce any written record that the Smoke detectors are being activated by the actions of either the candle burning during the service or from being properly extinguished at the end of service. Upon review of the appeal petition, it appears Mr. McDonagh does not object to the redactions in the letter he was provided, but only claims that the Department may possess additional responsive records. Records in Existence; No Duty to Answer Questions, Create Records Please be advised that 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). Further, 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). However, 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). In a telephone conversation with this office on August 7, 2025, the Department confirmed that it does not possess any additional records responsive to Mr. McDonagh’s request. Where the Department has confirmed that it does not possess additional responsive records, and the Department has no duty to create records, I find that the Department has met its burden in responding to this request under the Public Records Law. Conclusion Accordingly, I will consider this administrative appeal closed. If Mr. McDonagh is not satisfied with the resolution of this administrative appeal, please be advised that this office shares jurisdiction with the Superior Court of the Commonwealth. See G. L. c. 66, §§ 10(b)(ix), 10A(c) (pursuing administrative appeal does not limit availability of judicial remedies). Sincerely, Manza Arthur Supervisor of Records cc: William McDonagh