John J. Davey v. Executive Office of Labor and Workforce Development - Department of Industrial Accidents (SPR 20160228)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords April12, 2016 SPR16/228 Ms. Janine Senatore, Manager Office of Claims Administration Department of Industrial Accidents 1 Congress Street, Suite 100 Boston, MA 02114 Dear Ms. Senatore: I have received the petition of John Davey appealing the response of the Department of Industrial Accidents (Department) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, Mr. Davey requested claims information data for the past six months. The Department responded stating they have no reports to delineate this information. Mr. Davey appealed believing that the Department previously provided similar information. 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). Create a Record The duty to comply with requests for information extends only to those records that exist and are in the custody of the custodian of records at the time of the request. See G. L. c. 4, § 7(26) (defining "custodian" as the public employee with routine access to or control of public records). There is no obligation to create a record in response to a request for public records. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977) (custodian is not obliged to create a record in response to a request for information). Information extracted from a database, however, does not satisfy the definition of creating a record in response to a request for public record. While the Department indicated it had no responsive records, it is unclear whether the data exists in another form within the Department. It is the duty of a record custodian to use his superior knowledge of the records to assist a requester in obtaining the records 950 C.M.R. OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/ pre

Ms. Janine Senatore, Manager SPR16/228 Page 2 Aprill2, 2016 32.05(4). Accordingly, should the Department possess any responsive data, regardless of form, it must provide information regarding the public status of this information in a written response to a request for public records. Accordingly, the Department is hereby ordered, within ten (10) days ofthis order, to review its records and provide Mr. Davey with a response to his request, prepared in a manner consistent with this order, the Public Records Law and its Regulations. If the Department maintains that any portion of the responsive records are exempt from disclosure it must, within ten (1 0) days provide to Mr. Davey a written explanation, with specificity, how a particular exemption applies to each 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 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 http://www.sec.state.ma.us/pre/prepdf/guide.pdf. Attorneys on my staff are available during regular business hours to answer eneral 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 up request. Please contact my office directly at the telephone number provided in this det 'na on for further information. cc: Mr. John Davey