Todd Wallack v. Human Resources Division (SPR 20180198)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 1, 2018 SPRlS/198 Michele M. Heffernan, Esq. Deputy General Counsel/Records Access Officer Human Resources Division One Ashburton Place Boston, MA 02108 Dear Attorney Heffernan: I have received the petition of Todd Wallack of the Boston Globe appealing the response ofthe Human Resources Division (Division!HRD) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, on January 3, 2018, Mr. Wallack requested "[t]he list of state employees terminated for sexual harassment or sexual assault since January 1, 2013 - or the past five fiscal years, whichever is easier -- including the department name, date and fiscal year of termination, and reason for termination." The Division provided a response on January 17,2018, and a supplemental response on February 16,2018, which included responsive records. Unsatisfied with the Division's January 1i h response, Mr. Wallack petitioned this office and this appeal, SPR18/198, 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, § 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

Michele Heffernan, Esq. SPR18/198 Page 2 March 1, 2018 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. The Division's January 1 fh and February 16th responses In its January 17, 2018 response, the Division indicated that "the [Division] has no responsive documents. The [Division] is not provided with information with regard to the underlying reason for a termination." The Division directed Mr. Wallack to contact each agency's records access officer. In its February 16, 2018 supplemental response, the Division indicated that it is "not provided with the underlying reason for an employee's termination. HRD does not have a list of employees who were terminated for sexual harassment or assault." The Division indicated that its database only includes general reasons for separation from employment such as, "layoff, resignation, retirement, death, or discharge." Although the Division asserted that it "does not maintain a database with the specific reason underlying a termination which would include but not limited to sexual harassment or assault," the Division provided Mr. Wallack a spreadsheet of employee terminations and the general reason for separation from employment. 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, § 1O (a)(ii). The Division has provided responsive records in its possession and confirmed that it does not have records in the manner that Mr. Wallack indicates in his public records request. Conclusion Accordingly, whereas the Division has explained that it "does not maintain records with the specific facts underlying a termination" and has provided responsive records in its possession, I will consider this administrative appeal closed. Sincerely, ~~ Rebecca S. Murray Supervisor of Records cc: Todd Wallack