McDonald, Sally v. Office of the Comptroller (SPR 20150141)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords March 27, 2015 SPR15/141 Ms. Caroline Henriques Office of the Comptroller One Ashburton Place- 9th Floor Boston, MA 02108 Dear Ms. Henriques: I have received the petition of Sally McDonald appealing the response of the Office of the Comptroller (Office) to her request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Ms. McDonald requested documents regarding specifically identified individuals. In response you did not indicate whether any responsive records exist; you merely stated that "the documents requested do not appear to be government records generated, received or maintained in the ordinary course of business" by the Office. This response is not in compliance with the Public Records Law as it did not clearly state whether the requested records exist or are in the Office's possession. "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 town of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). Public records and any non-exempt, segregable portions thereof, are subject to mandatory disclosure upon request. G. L. c. 66, § 10(a); see also Reinstein v. Police Comm'r ofBoston, 378 Mass. 281, 289-90 (1979) (the statutory exemptions are not blanket in nature). The Public Records Law states that "the burden shall be upon the custodian to prove with specificity the exemption which applies." G. L. c. 66, § 10(c) (emphasis added); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995). Further, custodians of records are required to use their superior knowledge of the contents of their files to assist in promptly complying with the request. 950 CMR 32.05(4). Accordingly, I find the Office has not satisfied its burden of proving with specificity why responsive records have not been made available by failing to clearly indicate whether the requested records exist and are in its possession. Under the Public Records Law, the public status of records does not depend on the manner in which the records are used; rather, all OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832. Fax (617) 727-5914 www.sec.state.ma.us/pre

Ms. Caroline Henriques SPR15/141 Page Two March 27, 2015 documents made or received by the Office are subject to disclosure unless they fall within a statutory exemption. See G. L. c. 4, § 7(26). The Office is hereby ordered to provide Ms. McDonald with the responsive repords within ten (1 0) days. If the responsive records do not exist or are not in the Office's possession, the Office must clearly indicate such in its response. If the Office maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days, provide to Ms. McDonald a written explanation, with specificity, how a particular exemption applies to each record. This administrative appeal is now closed. ~tu urs, ~~A. Williams Supervisor of Records cc: Ms. Sally P. McDonald