Aliana Brodmann E. von Richthofen v. Massachusetts Commission Against Discrimination (SPR 20170515)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 25, 2017 SPR17/515 Myrna Solod Clerk of the Commission Massachusetts Commission Against Discrimination One Ashburton Place, Rm 601 Boston, MA 02108 Dear Ms. Solod: I have received the petition of Aliana von Richthofen appealing the nonresponse of the Massachusetts Commission Against Discrimination (Commission) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). On April 7, 2017, Ms. von Richthofen specifically requested from the Commission, "MCAD Denials from January to July 2016 or the ten Denials dating chronologically from (Jan.-Jul.) 2016." Having received no response, on April 18th Ms. Von Richthofen petitioned this office contending that ten days had elapsed and no response was provided. Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten (10) business days ofreceipt of the request. G. L. c. 66, § 1O (a),(b ). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 1O (b ). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Use of Custodian's Superior /(now/edge and The Public Records Law During a phone conversation with a member of the Public Records Division staff, Ms. von Richthofen informed this office that although the Commission had left her one voice message providing information in regards to her request, the Commission did not provide the records or a written response denying her request for public records. In accordance with the Public Records Law, a custodian is expected to use his/her superior knowledge of the records in his/her custody to assist the requester in obtaining the desired information. See 950 C.M.R. 32.04(5). One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

Myrna Solod SPR17/515 Page2 April 25, 2017 The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § lOA(d); 950 C.M.R. 32.03(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(b)(iv); 950 C.M.R. 32.06(3); 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). 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. Fee estimates An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d ). The fees must reflect the actual cost of complying with a particular request. Id. A maximum fee of five cents ($ .05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. C. 66, § lO(d)(i). Agencies may not assess a fee for the first four ( 4) hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66, § 10(d )(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § lO(d)(iv). See G. L. c. 66, § lO(d)(ii); 950 CMR 32.06(4). Please be advised, an agency RAO shall not charge a fee for the provision of a public record unless the RAO responded to the requester within ten (10) business days under G. L. c. 66, § lO(b). See 950 C.M.R. 32.06(2)(c). 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. Public Records Division attorneys are available during regular business hours to answer general questions regarding the Public Records Law. In addition, Public Records Division staff will visit a records custodian in person to conduct training workshops on the Public Records Law upon request. Please contact the Public Records Division directly at the telephone number provided in this determination for further information.

Myrna Solod SPR17/515 Page 3 April 25 , 2017 Order This office has emailed you a copy of the file and also mailed you a letter acknowledging the opening of this appeal. Accordingly, the Commission is hereby ordered to provide Ms. von Richtofen with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten (10) business days. 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. Sincerely, MJJA~ Rebecca S. Murray Supervisor of Records cc: Aliana von Richtofen