Price Armstrong v. Massachusetts Department of Higher Education (SPR 20160227)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April12, 2016 SPR16/227 Mr. Michael Mizzoni Director of Trustee Relations Massachusetts Department of Higher Education One Ashb urton Place, Room 1401 Boston, MA 02108 Dear Mr. Mizzoni: I have received the petition of Price Armstrong appealing the nonresponse of the Massachusetts Department of Higher Education (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Armstrong requested copies of records associated with the auditing of community college financial statements. Having received no response Mr. Armstrong petitioned this office. 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 District Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). In an April 6, 2016 telephone conversation with an attorney on my legal staff you explained that the Department is not the custodian ofthe records Mr. Armstrong requested. You further suggest that Mr. Armstrong may wish to request the records he seeks from the Massachusetts Community Colleges. It is my understanding that the Department has not directly provided this information to Mr. Armstrong in the form of a written response. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) days of the request. G. L. c. 66, § OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Mr. Michael Mizzoni SPR16/227 Page 2 April12, 2016 10(b); 950 C.M.R. 32.05. The ten-day provision is a maximum, rather than a minimum, time frame for complying with a public records request. The response may be an offer to provide records, a fee estimate for provision of the records, or a denial. The Department is advised that all records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. The Department should have provided a written response to Mr. Armstrong, if only to inform him that it is not the custodian of records responsive to his request. Accordingly, the Department is hereby ordered to provide such a response. As it appears the Department is not the custodian of the records requested, I will consider this appeal closed with the proviso that the Department provide a written response to Mr. Armstrong, within ten (10) days of this order, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains it is not the custodian of the responsive records it is strongly encouraged to assist Mr. Armstrong in contacting the proper custodian. A copy of the Department's 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 in requesting and responding to requests for public records please refer to our publication, A Guide to the Massachusetts Public Records Law. This document is available on the Internet, free of charge, at htt ://www.sec.state.ma.us/ re/ re df/ uide. df. Attorneys on my staff are available during regular business hours to answer gene 1 questions regarding the Public Records Law. In addition, members of my staff will visit a rec ds custodian in person to conduct training workshops on the Public Records Law upon r uest. Please contact my office directly at the telephone number provided in this deter ation or further information. cc: Mr. Price Armstrong