MA Department of Correction and MCI-Norfolk Policies and Practices Concerning Non-Legal Video Calls with Inmates

March 9, 2021
Ms. Kate Silvia, Primary RAO, MA Department of Correction
50 Maple Street, Milford, MA 01757

Dear Ms. Silvia:

This letter is a public records request under M.G.L. c. 66, § 10 (the “PR Law”) concerning those public records as described below within the possession, custody, or control of the Massachusetts Department of Correction (DOC), defined to include without limit (i) all DOC officers, employees, agents, or representatives, as well as (ii) any third parties or independent contractors that do business with, or provide services to or on behalf of, DOC. The PR Law broadly defines “public records” to include “all books, papers, maps, photographs, recorded tapes, financial statements, statistical tabulations, or other documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee” of any Massachusetts governmental entity.

Please provide the following public records:

1. All public records concerning the decision to allow video calls between non-legal video callers and inmates at MCI-Norfolk, including without limit (i) internal communications involving MCI-Norfolk and DOC or other Massachusetts state personnel; and (ii) external communications involving MCI-Norfolk and DOC or other Massachusetts state personnel and any third party, including Securus Technologies, Inc. (“Securus”).

2. All public records concerning any contractual or other agreement or arrangement whereby Securus or any other third party has been engaged or contracted with to provide video calls between non-legal video callers, on the one hand, and MCI-Norfolk inmates, on the other, including without limit (i) the term length of any such contract or agreement; (ii) the cost per minute (or cost as otherwise assessed) charged to inmates and/or their non-legal video callers for such calls; and (iii) the financial terms of any such contract or agreement, as between MCI-Norfolk or the DOC, on the one hand, and Securus (or other third party), on the other, including any share or percentage of income or receipts generated by such video calls paid to MCI-Norfolk and/or the DOC.

3. All public records concerning the policies, processes, or procedures by which MCI-Norfolk or the DOC introduced video calls between non-legal video callers and inmates at MCI-Norfolk, including documents sufficient to show how, when, by whom, and in what manner the availability of such video calls was communicated to MCI-Norfolk inmates and to third parties, including any anticipated non-legal video callers.

4. All public records concerning the creation, drafting, selection, application, distribution, and dissemination of any requirements, rules, regulations, restrictions, dress codes, or other constraints considered by MCI-Norfolk or other DOC personnel to be applicable to video calls between non-legal video callers and inmates at MCI-Norfolk.

5. All public records containing communications between MCI-Norfolk or other DOC personnel and all non-legal video callers approved by MCI-Norfolk and/or Securus (or other third party) to place video calls with MCI-Norfolk inmates, including all such communications setting forth any requirements, rules, regulations, restrictions, dress codes, or other constraints considered by MCI-Norfolk or other DOC personnel to be applicable to such video calls; and the manner in which any such communications were made (by email, hard copy letter, telephone call, etc.).

6. All public records containing communications between any third party, including Securus (or other third party), and all non-legal video callers approved by MCI-Norfolk and/or Securus to place video calls with MCI-Norfolk inmates, including all such communications setting forth any requirements, rules, regulations, restrictions, dress codes, or other constraints considered applicable to such video calls; and the manner in which any such communications were made (by email, hard copy letter, telephone call, etc.).

7. All public records sufficient to show whether, when, by whom, and in what manner, if any, non-legal video callers with scheduled video calls involving an MCI-Norfolk inmate were provided with advance notification of any requirements, rules, regulations, restrictions, dress codes, or other constraints considered by MCI-Norfolk or other DOC personnel to be applicable to such video calls.

8. All public records concerning the policies, processes, or procedures governing the execution, conditions, frequency, conduct, and oversight of video calls between non-legal video callers and MCI-Norfolk inmates, including without limit any such public records concerning any sanctions, loss of visiting or other privileges, or any other disciplinary measures to be taken as a result of any alleged rule or conduct violation during such video calls. Your response should include, without limit, (i) the name and title of any MCI-Norfolk or other DOC official authorized to impose such sanctions, losses of privilege, or other disciplinary measures; (ii) the manner in which, and by whom, determinations are made as to the nature, type, severity, duration, applicability, or other variation of the sanction, loss of privilege, or other disciplinary measure imposed; and (iii) whether and to what extent such determinations are mandatory or discretionary.

9. In cases of video calls between non-legal video callers and MCI-Norfolk inmates, all public records concerning, or sufficient to show, the following:

a. All such video calls in which a violation(s) is alleged to have been committed by the non-legal video caller.
b. For each such video call identified in response to Request 9(a), above, (i) a detailed description of the alleged misconduct or violation(s); and (ii) the requirement, rule, regulation, restriction, dress code requirement, or other constraint alleged to have been violated.
c. For each such video call identified in response to Request 9(a), above, the name and title of all persons who reviewed the video call and the number of times each such video call was reviewed.
d. For each such video call identified in response to Request 9(a), above, details concerning MCI-Norfolk or other DOC or Massachusetts state personnel’s response to the alleged violation(s), including (i) all internal communications between or among MCI-Norfolk personnel and/or other DOC or Massachusetts state personnel; and (ii) all communications with the subject non-legal video caller, the subject inmate, and/or any third party concerning the alleged violation(s).

10. Public records sufficient to show:

a. The total number of video calls between non-legal video callers and MCI-Norfolk inmates from the date such video calls were commenced in or around January 2021 to the present.
b. The number of such video calls in which a violation(s) by any party is alleged to have occurred.
c. The number of such video calls in which a violation(s) is alleged to have been committed by, respectively, the subject non-legal video caller; the subject inmate; and both parties.

11. In cases of video calls between non-legal video callers and MCI-Norfolk inmates in which the non-legal video caller is alleged to have committed a violation(s), and to the extent such information was not previously provided in response to Request 9, above, public records detailing the nature, type, severity, duration, applicability, or other variation of any sanction, loss of visiting or other privilege, or any other disciplinary measure imposed as a result of such alleged violation(s).

12. To the extent any non-legal video caller is alleged to have committed a violation(s) during a video call with an MCI-Norfolk inmate and information concerning such alleged violation was disclosed by MCI-Norfolk or any other DOC or Massachusetts state personnel to any third party, public records sufficient to show:

a. All policies, processes, or procedures governing the release of such information to third parties, including when and in what circumstances such disclosures are permitted or required; when and in what circumstances such disclosures are limited or prohibited, if any; whether and to what extent the decision to disclose such information to third parties is subject to advance review by legal or other counsel; and whether and to what extent the MCI-Norfolk or DOC employee(s) or official(s) responsible for such disclosures may be subject to discipline, reprimand, or any other form of employee sanction for improperly or illegally disclosing such information to third parties.
b. The legal, statutory, or other basis for disclosing such information to third parties, with citation to all relevant statutes, regulations, DOC or other Massachusetts state agency opinions or memoranda, or other allegedly enabling or authorizing documents you allege provide legal authority for, and/or mandate, such disclosures.
c. With respect to each such video call, the identity of the third party or parties to whom such disclosure was made, including without limit the relation of such third party or parties (i) to the subject non-legal video caller; and (ii) if applicable, to the subject inmate.
d. With respect to each such video call, (i) the purpose or goal of disclosing such information to such third party or parties and how such disclosures promote the DOC’s stated mission/vision of “providing [inmate] care” and/or effecting “positive behavioral change” among inmates (see MA DOC Program Description Booklet, October 2020); (ii) how such disclosures facilitate inmate visits or “reflect the importance of maintaining [inmate] contact with family and the community” (see 103 CMR 483.01); and (iii) how such disclosures are consistent with the requirement that all DOC staff “shall treat visitors with dignity and respect” (see 103 CMR 483.01).
e. With respect to each such video call, the name and title of the MCI-Norfolk or DOC employee(s) or official(s) who reviewed the video call and the number of times such video call was reviewed by each such person.
f. With respect to each such video call, the name and title of the MCI-Norfolk or DOC employee(s) or official(s) who (i) determined a violation(s) had occurred, and (ii) authorized or caused disclosure of such alleged violation(s) to the third party or parties.

13. All public records detailing all lawsuits, grievances, and/or other arbitrated or mediated conflicts commenced on or after January 1, 2018 to the present in which DOC and/or MCI-Norfolk (or any agent thereof) was a defendant or respondent and in which the opposing party or parties asserted claims including, without limit, (i) tortious interference with business or contractual relations (or any state or federal analog thereto), and (ii) intentional infliction of emotional distress (or any state or federal analog thereto).

14. With respect to each dispute, conflict, or lawsuit identified in response to Request 13, above, public records sufficient to show how each such dispute was handled and/or resolved, including without limit the parties involved; the nature and facts of the complaint; the date on which the complaint was filed or otherwise commenced and in what forum; the date on which the dispute was resolved and the manner of such resolution (e.g., judgment following trial; summary judgment; directed verdict; settlement; etc.); the amount paid, if any, to settle the dispute and to whom such monies were paid; the total amount in legal fees and costs incurred by DOC or MCI-Norfolk (or any agent thereof) in connection with the dispute; and whether and to what extent any DOC or MCI-Norfolk employee(s) or official(s) was disciplined, reprimanded, or otherwise subject to any form of employee sanction, including termination, in connection with the facts alleged in the dispute, conflict, or lawsuit.

15. All public records concerning the policies, processes, or procedures governing either contemporaneous or after-the-fact review by MCI-Norfolk or other DOC personnel of recorded video calls between non-legal video callers and MCI-Norfolk inmates, including without limit:

a. The name and title of all DOC or MCI-Norfolk employee(s) or official(s) required or permitted to review such video calls.
b. Whether such DOC or MCI-Norfolk employee(s) or official(s) is required to review all such video calls or, if not all, which video calls are selected for review and for what reason (e.g., random selection, every fifth or tenth or twentieth video call, selection based on the identity of the non-legal video caller or the subject inmate, etc.).
c. The number of such video calls selected for review and such number stated as a percentage of the total number of video calls made involving non-legal video callers and MCI-Norfolk inmates.

Further clarification of any of the above requests can be provided upon request. To the extent any request seeks duplicative information, please indicate which documents/information are intended to be responsive to more than one request and the specific requests involved.

I also request that any fees incurred in connection with responding to this letter be waived as this request is in the public interest, as suggested but not stipulated by the recommendations of the Massachusetts Supervisor of Public Records. In addition, as stated by the Massachusetts Secretary of the Commonwealth, “all agencies and municipalities are strongly urged to waive the fees associated with access to public records”. See A Guide to the Massachusetts Public Records Law (updated March 2020) (Galvin, William F., Secretary of the Commonwealth) at 41 (accessed 3/8/21 at https://www.sec.state.ma.us/pre/preinformation.htm). The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press, and is made in the process of news gathering and not for commercial usage.

If you withhold some portions of the requested documents on the grounds that they are exempt from disclosure, please specify which exemptions apply and release any portions of the records for which you do not claim an exemption. Please provide the requested records in electronic format to the maximum extent possible. To the extent you contend any of the requested records are not public records, or are otherwise exempt from disclosure in response to this request, please take steps to ensure that such records are preserved, and are not modified, deleted, or destroyed, pending review of your contention and the resolution of any resulting dispute.

With respect to the form of production, responsive electronic records should be provided electronically in their native file format, to the maximum extent possible. Paper records may be scanned and provided in static-image format (PDF). Please provide copies of entire correspondence in relevant searches, including all documents or attachments that were included or forwarded. Records should include but not be limited to electronic correspondence transmitted via computer, laptop, mobile phone and/or other electronic devices, and should include but not be limited to any emails in which an employee or other official or agent was the direct recipient, CC recipient, BCC recipient, and/or listserv recipient. All images in any email should be downloaded and viewable before being copied. Please note that custodians of public records must comply with a public records request within ten (10) days of receipt thereof. If you cannot comply with my request within the mandated time frame, you are statutorily required to provide an explanation in writing. Thank you for your anticipated assistance with this matter. Please do not hesitate to contact me if you have any questions or need further clarification concerning any part of this request.

Sincerely,

M. Claire Masinton

Kate Silvia, Director of Communications
MA Department of Correction
50 Maple Street
Milford, MA 01757

Dear Ms. Silvia:

I am in receipt of your letter dated March 24, 2021, in response to my public records request dated March 11, 2021 (the "March 11 PRR"). While your letter fails to address the arguments set forth in the March 11 PRR in favor of waiving any fees incurred in connection therewith (and while I also believe the assessed fee amount is excessive), I will nonetheless pay the fee in an effort to expedite my request. You will receive such payment under separate cover, by first class U.S. mail. Please notify me upon receipt of said payment with an anticipated date, consistent with statutory requirements, by which the March 11 PRR will be fulfilled.

Sincerely,
M. Claire Masinton

Ms. Silvia:

Can you please confirm whether you've received my check for the $900 fee sought in connection with my March 11, 2021 public records request to the MA DOC? I mailed the check to the indicated address via 1st class USPS mail 8 days ago (last Thursday, March 25, 2021) and would thus expect it to have reached you by now. I am also attaching a copy of the cover letter, check, and mailing envelope hereto (with certain account and personally identifying information redacted), for your files. Please let me know either way whether you've received the payment. Thank you.

M. Claire Masinton

Kate: Thank you for letting me know. Please keep me informed as to the expected date or dates of production once you know more.

Sincerely,
M. Claire Masinton

Ms. Silvia:

Can you please provide an update as to when you expect to produce the public records requested in my March 11, 2021 public records request to the MA Department of Correction (the "March 11 PRR")? As you previously acknowledged on April 2, you are in receipt of my check for the fee charged in connection with my request, which was the only hurdle to production you identified in your initial response to me on March 24, 2021. State law governing public records requires that "for an agency, the timeframe [for production] shall not exceed 15 business days following the initial receipt of the request for public records". See M.G.L. c. 66, section 10(b)(vi). It has now been 24 business days since you received the March 11 PRR, thus a substantive response is 9 days past due, at a minimum. Please let me know at your earliest convenience when I can expect DOC's production.

Sincerely,
M. Claire Masinton

May 28, 2021

Dear Ms. Silvia,

Please see attached. Note that due to size limits associated with this site, the 4 attachments to the enclosed letter have not been included here but were separately emailed to you (along with another copy of the attached letter). Thank you.

Sincerely,
M. Claire Masinton

Ms. Kate Silvia
Director of Communications
Massachusetts Department of Correction

June 30, 2021

Dear Ms. Silvia:

I am in receipt of the documents produced on June 25, 2021 in response to my March 11, 2021 Public Records Request to the MA Department of Correction (the "March 11 PRR") and pursuant to the MA Supervisor of Records' June 15, 2021 order granting my appeal and directing the DOC to produce responsive documents within 10 business days (see attached June 15 Letter from Supervisor of Records Rebecca S. Murray, Case No. SPR21/1364). However, the June 25th production appears to be incomplete, as the DOC failed to respond to several distinct requests contained in the March 11 PRR. Is it the case that the DOC intends to produce responsive documents on a rolling basis? If so, when can I expect a further production(s) from the DOC? Alternatively, is it the DOC's position that its production is now complete? Your June 25th cover letter was silent on the issue, neither asserting any exemptions from the MA Public Records Law nor noting any documents or categories of documents the DOC intended to withhold (or the alleged basis therefor). At the same time, several sections of the March 11 PRR appear to have been ignored. Before proceeding further with the Supervisor of Records or in Superior Court, I first want to confirm DOC's position (one way or the other) with respect to the documents it produced on June 25th.

The above is not intended to be exhaustive, nor is it intended to waive any additional complaints or concerns that may be asserted in connection with the March 11 PRR.

Thank you for your anticipated prompt response to my inquiry.

Sincerely,
M. Claire Masinton

cc: Rebecca S. Murray, Supervisor of Records

September 14, 2021

Dear Ms. Silvia:

Please see attached second appeal petition letter to the MA Supervisor of Records, exclusive of the attachments, A through G (which were too numerous to upload here). I have also emailed the letter PLUS attachments to you at kate.silvia@state.ma.us. If you fail to receive any of same, please let me know as soon as possible. Thank you.

Sincerely,
M. Claire Masinton