Todd Wallack v. Division of Capital Asset Management and Maintenance (SPR 20170543)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 4, 2017 SPR17/543 Peter Wilson, Esq. Deputy General Counsel Division of Capital Asset Management and Maintenance One Ashburton Place Boston, MA 02108 Dear Attorney Wilson: I have received the petition of Todd Wallack of The Boston Globe appealing the response of the Division of Capital Asset Management and Maintenance (DCAMM) to his request for public records. G. L. c. 66 § IOA; see also 950 C.M.R. 32.08(1). Specifically, Mr. Wallack requested a copy of a "September 2011 report prepared by the Massachusetts Division of Capital Asset Management analyzing facilities for the Massachusetts State Police (Project POL0901 STl)," as well as "any follow-up reports [DCAMM] may have prepared for the department." Previous appeal This request was the subject of a previous appeal. See SPRl 7 /529 Determination of the Supervisor of Records (April 21, 2017). SPRl 7/529 was closed in light of DCAMM's response dated April 18, 2017. Mr. Wallack subsequently appealed the April 18th response and this appeal (SPRl 7/543) was opened as a result. 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, § 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, § 1O (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 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

Peter Wilson, Esq. SPRl 7/543 Page 2 May 4, 2017 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(b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. Current appeal In DCAMM's April 13th response you indicate "[u]pon inquiry, we understand that you have obtained this document from the Massachusetts State Police. Please advise as to whether you would like additional records, and if so, please submit a new public records request." In his appeal petition, Mr. Wallack indicates he also requested "any follow-up reports" and that DCAMM has "declined to provide the records." The duty to comply with requests for records extends to those records that exist and are in the possession, custody, or control of the custodian ofrecords at the time of the request. See G. L. c. 66, § lO(a)(ii). Therefore, DCAMM must confirm whether it possesses responsive records, including the "September 2011 report" and "any follow-up reports." Although you informed a Public Records Division staff attorney that DCAMM does not possess "any follow-up reports," DCAMM must confirm this in a written response to Mr. Wallack. DCAMM must provide any responsive records in a manner consistent with the Public Records Law, its Regulations, and this determination. I understand a Public Records Division staff attorney contacted you and you indicated DCAMM would provide a supplemental response to Mr. Wallack. Conclusion Accordingly, I will consider this appeal closed with the proviso that DCAMM provide Mr. Wallack with a response to the request, provided in a manner consistent with this order, the Public Records Law and its Regulations within ten 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. Mr. Wallack may appeal the substantive nature ofDCAMM's response within ninety (90) days. See C.M.R. 32.08(1). Sincerely, ~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack