Matthew A. Morris v. Department of Conservation and Recreation (SPR 20170864)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords July 7, 2017 SPR17/864 Michael Tencellent Office of the General Counsel Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Mr. Tencellent: I have received the petition of Matthew A. Morris, Esq. appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66 § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney Morris requested: All employment records of his client John P. Hannon from January 1, 1973 through December 31, 2017, including job titles, dates of service, rates of pay, payroll action dates and summaries, and number of hours worked (per year, per month, and/or per pay period) as aDEM employee for the time period of 1973-1979. This information should include Mr. Hannon's identifying information such as his name, social security number and date of birth. (Attorney Morris included a Power of Attorney signed by his client). The Department provided Attorney Morris with some records; however, Attorney Morris stated in his April 19th email to you that the Department has not provided all the records regarding Mr. Hannon's years of employment. In your May 16th email, you informed Attorney Morris that the records provided were the records that the Department was able to gather. Petition for appeal; requirements for filing an appeal Attorney Morris petitioned the Supervisor of Records stating that the records are necessary to substantiate Mr. Hannon's employment and earnings history for the appeal pending with the Contributory Retirement Appeal Board (CRAB). In his petition, Attorney Morris states that the Department had the responsibility to retain the employment records for fifty (50) years after separation from employment. The petition and in emails to the Department that there are errors in Mr. Hannon's employment record that he would like the Department to correct. 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

Michael Tencellent SPR17/864 Page 2 July 7, 2017 Whereas Attorney Morris did not provide the Records Access Officer (RAO) with a copy of his petition to the Supervisor of Records (Supervisor), this office provided the RAO with a copy. In petitioning the Supervisor, the requester must provide a copy of such petition to the RAO associated with such petition. 950 C.M.R. 32.08(1)(h). Status of the requester Attorney Morris is advised that his status as the attorney for a person seeking his own employment records offers him no greater right of access than any other person in the public realm. See G. L. c. 66, § lO(a) (public records are to be provided to "any person"); see also Bougas v. Chief of Police of Lexington, 371 Mass. 59, 64 (1976). Access to a record pursuant to the Public Records Law rests on the content of the record, regardless of the circumstances of the requester. Therefore, Attorney Morris's status and that of his client's, relating to a pending matter before the CRAB will play no role in a determination as to whether the records should be disclosed to the public, or whether the records contain errors and should be corrected. Furthermore, the public records appeals process shall not apply to records in which an individual, or a representative of the individual, has a unique right of access to the records through statutory, regulatory, judicial or other applicable means. See 950 C.M.R. 32.08(l)(a). Records Management The Department has not provided Attorney Morris with all of the personnel records requested. In a May 16th email to Attorney Morris you stated, "the records that you have are what we were able to gather." It is not clear whether the Department conducted a diligent search of paper and electronic records, including the Department's archived records. If the Department cannot locate the responsive records, grave records management issues will be raised. The requested records relate to employee personnel case files regarding retention of records to document individual employee work histories. Under the Massachusetts Statewide Records Retention Schedule Number 01-17, Series Number E4-05(a), "information needed to calculate creditable prior service time, i.e. dates of service, rates of pay, payroll action dates and summaries, and annual salary along with identifying information such as name and social security number and date of birth: Retairi for 50 years after separation." It is my understanding that a Public Records Division attorney advised the Department that another diligent search of paper, electronic and archived records must be conducted, and another response relative to the search and the requested records must be provided to Attorney Morris. Order Accordingly, the Department is hereby ordered to provide Attorney Morris with a response to the request, provided in a manner consistent with this order, the Public Records Law

Michael Tencellent SPR17/864 Page 3 July 7, 2017 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. Attorney Morris may appeal the substantive nature of the supplemental response within ninety (90) calendar days. 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Matthew A. Morris, Esq.