Haddadin, Jim v. Executive Office for Administration and Finance - Office of Information Technology (SPR 20150877)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams January 8, 2016 Supervisor ofR ecords SPRlS/877 Ms. Linda Hamel, Esq. General Counsel Massachusetts Office of Information Technology One Ashburton Place, Room 804 Boston, MA 02108 Dear Attorney Hamel: I have received the petition of Jim Haddadin of Metro West Daily News appealing the response of the Office oflnformation Technology (MassiT) to a request for public records. G. L. c. 66 § 10(b); see also 950 C.M.R. 32.08(2). Specifically, Mr. Haddadin requested "access to and copies of records that describe, list, or catalog the databases maintained by [MassiT]." Mr. Haddadin indicated his interest was to obtain information to assist in "[learning] more about the nature ofthe databases." In a response dated October 15, 2015, MassiT denied access to "a wholesale disclosure of all state agency databases maintained by MassiT" citing Exemption (n), the public safety exemption to the Public Records Law. G. L. c. 4, § 7 (26)(n). Ms. Burwell further stated that such disclosure "would pose a security threat to the state's IT systems, in that it would disclose data and information stored at MassiT facilities whose locations are publicly known." Mr. Haddadin appealed, stating his belief that "[t]he public safety exemption does not cover perceived threats to IT databases." The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10 ( c); 950 C.M.R. 32.08(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 town 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 ( c); 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) Records in existence The duty of a custodian of records to comply with requests for information extends only to records that exist and are in the custodian's custody. G. L. c. 4, § 7(26) (defining "public OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax {617) 727-5914 www.sec.state.ma. us/ pre

Ms. Linda Hamel, Esq. SPR15/877 Page 2 January 8, 2016 records" as those non-exempt materials made or received by a public employee); see also 950 C.M.R. 32.03 (defining "custodian" as the public employee with routine access to or control of public records). In further communication with this office, MassiT described records that do not seem to be responsive to Mr. Haddadin's request because they do not describe the content of the databases. Based upon a review of the file and my January 6, 2016 telephone conversation with you, I find that MassiT has not clearly stated whether it possesses records that are responsive to Mr. Haddadin's request for "records that describe, list, or catalog the databases maintained by [MassiT]." Conclusion I find MassiT has failed to respond to a request for public records as it has failed to indicate, with specificity whether a responsive record exists. Accordingly, MassiT is hereby ordered to provide Mr. Haddadin with a revised response to his request, provided in a manner consistent with this order, the Public Records Law and its Regulations. IfMassiT does determine it holds a responsive record, and further should it then maintain that any portion of a responsive record is exempt from disclosure MassiT must provide to Mr. Haddadin a written explanation, with specificity, how a particular exemption applies to such record. 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. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. To assist the MassiT in responding to requests for public records I have enclosed a copy of our publication, A Guide to the Massachusetts Public Records Law. This document is also available on the Internet, free of charge, at http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer general questions regarding the Public Records Law. In addition, members of my staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact my office directly at the telephone number provided in this determination for further information. cc: Mr. Jim Haddadin