Jim Haddadin v. Executive Office for Administration and Finance - Office of Information Technology (SPR 20160307)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Shawn A. Williams Supervisor ofR ecords June 16,2016 SPR16/307 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 James Haddadin ofthe Metro West Daily News appealing the February 5, 2016 response of the Executive Office for Administration and Finance-Office of Information Technology (MassiT) to a request for public records. G. L. c. 66 § 1O (b ); see also 950 C.M.R. 32.08(2). Specifically, in August 2015, Mr. Haddadin requested all records that "describe, list or catalog the databases maintained by MassiT." (Emphasis added by Mr. Haddadin in his May 3 petition for a second-round appeal). In letters dated October 15,2015 and February 5, 2016, MassiT denied Mr. Haddadin's request citing Exemptions (d) and (n) of the Public Records Law. The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 1 0( 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, § lO(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). 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1 O(a); see also 950 C.M.R. 32.06(2) (where cost of complying with a request for public records is expected to exceed ten dollars ($10.00), custodian of records shall OneAshburton Place, Room 1719, Boston, Massachusetts 02108 · (617) 727-2832 ·Fax (617) 727-5914 www.sec.state.ma. us/pre

Ms. Linda Hamel, Esq. SPR16/307 Page 2 June 16, 2016 provide written good faith estimate). Once fees are paid, a records custodian must provide the responsive records. 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 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. Previous and current appeal The present appeal regards a records request that was the subject of a previous appeal. See SPR15/877 Determination ofthe Supervisor ofRecords (January 8, 2016). In the January 8 determination I found that MassiT failed to meet its burden of explaining with specificity what record(s) MassiT has that may be responsive to Mr. Haddadin's request, and failed to provide the level of specificity to withhold the responsive records in their entirety pursuant to Exemptions (d) and (n) ofthe Public Records Law. G. L. c. 4, § 7 (26) (d), (n). I ordered MassiT to provide Mr. Haddadin with the requested record or a written explanation, with specificity, whether MassiT actually has a record that is responsive and how any exemptions claimed specifically apply to withhold any such responsive record. In camera review To assist in my review of this appeal I conducted an in camera review of the records and information associated with Mr. Haddadin's appeal. My authority to require the submission of documents for an in camera inspection emanates from the Code of Massachusetts Regulations. 950 C.M.R. 32.08(6); G. L.c. 66, § 1. This office interprets the in camera inspection process to be analogous to that utilized by the judicial system. See Rock v. Massachusetts Commission Against Discrimination, 384 Mass. 198,206 (1981). Documents are not voluntarily submitted, but rather are submitted pursuant to an order by this office that an in camera inspection is necessary to make a proper finding. Documents are submitted for the limited purpose of review. This office is not the custodian of records examined in camera, therefore, any request made to this office for records being reviewed in camera will be denied. See 950 C.M.R. 32.03. This office has a long history of cooperation with governmental agencies with respect to in camera inspection. Custodians submit a copy of the relevant documents to this office upon a promise of confidentiality. This office does not release documents reviewed in camera to anyone under any circumstances. Upon a determination of the public record status, documents

Ms. Linda Hamel, Esq. SPR16/307 Page 3 June 16, 2016 reviewed in camera are promptly returned to the custodian. To operate in any other fashion would seriously impede our ability to function and would certainly affect our credibility within the legal community. I thank both you and Mass IT for your cooperation in providing copies of records associated with this appeal to me for in camera review. At the conclusion of this appeal all copies of such records will be returned to you and no copies will be retained by my office. MassiT concludes its records are not responsive to Mr. Haddadin 's request Subsequent to the opening of the present appeal you contacted Mr. Haddadin in order to better understand his request and determine whether any of its records were responsive to his request. While a records custodian is generally not permitted to inquire as to the reasons for a request, a records custodian may seek clarification from a requester in order to use her superior knowledge in responding to a request for public records. See 950 C.M.R. 32.05 ( 4), (5). In its initial review of Mr. Haddadin's request MassiT determined it possessed responsive records and MassiT further determined that those records were exempt from disclosure. You explained to an attorney on my staff that based on your subsequent conversation with Mr. Haddadin you no longer believe that the records withheld by MassiT are responsive to Mr. Haddadin's request. You confirmed this belief in a letter to my office dated June 7, 2016. Conclusion MassiT has determined it has no records responsive toM . Haddadin's request. Mr. Haddadin is encouraged to directly contact any agency that may ave records responsive to his request. cc. Mr. James Haddadin