Moss, Brandon v. Office of the Attorney General - Environmental Protection Division (SPR 20150600)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords December 7, 2015 SPRlS/600 Ms. Lorraine A.G. Tarrow, Esq. Assistant Attorney General Office of Attorney General Maura Healey One Ashburton Place, 20th Floor Boston, MA 021 08 Dear Attorney Tarrow: I have received the petition of Brandon H. Moss, Esq. of the law firm Murphy, Hesse, Toomey & Lehane, LLP appealing the response of the Office of the Attorney General-Fair Labor Division (AGO) to his request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, an attorney from this law firm requested records related to investigations into specific wage complaints. Basis of appeal The AGO provided responsive records in a response dated April3, 2015. In his appeal petition, Attorney Moss indicates the records produced did not contain certain original contemporaneous interview notes that were taken by one or more AGO employees in the course of the wage investigations. The AGO informed Attorney Moss that these notes were not retained. The basis of Attorney Moss' appeal is his contention that the AGO did not comply with statutory obligations because it discarded interview notes "without reaching the applicable retention period and without obtaining written approval from your office." Responses by the A GO In an email dated July 6, 2015, Assistant Attorney General Lisa C. Price informed the attorney that requested the records that "you have all records in our possession in relation to the interviews, and for that matter, you have all the records you requested." Assistant Attorney General Price further explain "[t]he notes taken during the interview are memorialized in the Report of Interviews that you already have and were not retained as all the information as recorded there." OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Lorraine A. G. Tarrow, Esq. SPR15/600 Page Two December 7, 2015 A state agency records custodian is required to maintain records for the proper retention period, as stated in the Statewide Records Retention Schedule (Schedule). The Records Conservation Board (RCB) reviews and grants approval for destruction of state agency records that have completed a prescribed retention period. Some records, as defined in the Schedule, do not require advance notification and approval by the RCB, and may be destroyed after the administrative use for such records ceases. In a conversation with a member of my staff, you explained that it is the AGO's position that the responsive investigators' handwritten notes fall within one or two sections of the Schedule that do not require permission from the RCB for destruction. These sections are the "Draft and Notes" and the "Document Composition Materials" sections within the "F3" record series. Records of this type need only be retained "until administrative use ceases. Permission from RCB not required for destruction. See Statewide Records Retention Schedule F3-3(b) Drafts and Notes, F3-4 Document Composition Materials. I find the AGO has met its burden in providing an explanation as to why the responsive records no longer exist. Whereas there are no records responsive to this request, and further whereas the AGO has met its burden to explain why it no longer possesses these records, I will consider this administrative appeal closed. 1lliams cc: Mr. Brandon H. Moss, Esq.