Maria Sheehy v. Executive Office for Administration & Finance (SPR 20171602)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords November 27, 2017 SPR17/1602 Robert Ross, Esq. General Counsel Executive Office for Administration & Finance State House, Room 3 73 Boston, MA 0213 3 Dear Attorney Ross: I have received the petition of Maria Sheehy, Esq. appealing the response of the Executive Office for Administration and Finance (EOAF) to a request for public records. G. L. c. 66, § IOA; see also 950 C.M.R. 32.08(1). Specifically, on September 21, 2017, Attorney Sheehy requested a "copy of all records relative to my candidacy for this position, including all records related to the hiring process, background check, recommendations, either positive or negative, any communications between [EOAF] and/or the Office of the Governor and any state agency, political subdivision or private party, as well as your affirmative action and hiring policies." The EOAF provided responsive records on October 18, 2017. In this appeal, Attorney Sheehy is petitioning the substantive nature of the EOAF's response, believing that she has not been provided with all responsive records. SPRI 7/ 1602 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, § IOA(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. 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

Robert Ross, Esq. SPR17/1602 Page 2 November 27, 2017 If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 1O (b )(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. No Duty to Create Records In a telephone conversation with a representative from the EOAF, the EOAF stated it does not possess responsive records pertaining to the job posting but indicates the job posting and description should be on the MassCareers website. The EOAF also indicated that it provided Attorney Sheehy with a copy of the background check and that it has no feedback from the background check. The EOAF further indicated that it does not possess records of communications between the EOAF and other offices. However, the EOAF indicated that it does possess notes, which were taken for personal use during contact with one of the professional references provided by Attorney Sheehy. Under the Public Records Law, the EOAF is not required to create a record in response to a public records request. See G. L. c. 66, § 6A(d); 32 Op. Atty Gen. 157, 165 (May 18, 1977). 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). As such, whereas the EOAF indicates it does not have records responsive to Attorney Sheehy's request for records pertaining to the job posting, background check, and contacts between the EOAF and other offices, I find Attorney Sheehy' s appeal relating to such requests has been resolved. However, as the EOAF indicated that it possesses responsive records pertaining to Attorney Sheehy's request regarding "contact with at least two of my professional references," I find that the EOAF has not properly claimed an exemption to withhold the record. As stated above, the EOAF is reminded that 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). If the EOAF believes that an exemption is applicable to withhold the record, the EOAF must identify the exemption and explain with specificity how the exemption applies. Flatley, 419 Mass. at 511 ( custodian has the burden of establishing the applicability of an exemption). I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, whereas the EOAF has indicated that it will provide a supplemental response, I will consider this administrative appeal closed with the proviso that the EOAF provide said response 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.

Robert Ross, Esq. SPRl 7/1602 Page 3 November 27, 2017 Sincerely, Rebecca S. Murray Supervisor of Records cc: Maria Sheehy