Gerard F. Mackin, Jr. v. Department of Youth Services (SPR 20182079)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords January 8, 2019 SPRlS/2079 Ramona Krogman Department of Youth Services 600 Washington Street, 4th Floor Boston, MA 02111 Dear Ms. Krogman: I have received the petition of Attorney Gerard Mackin Jr. appealing the response of the Department of Youth Services (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Attorney Mackin requested five categories of records regarding a named employee of the Department. This appeal only pertains to the following two requests: "(1) ... Every document, whether paper or electronic in form, constituting, referring or relating to a calendar of the days [the named employee] was expected to work during the calendar year 2016 including any statement of her normal work day; (2) Every document constituting a calendar or other record of days [the named employee] actually worked during that year." The Department provided an initial response on November 20, 2018, which included a fee estimate. After receipt of payment, the Department provided another response on December 13, 2018, including portions of the responsive records in redacted form. Unsatisfied with the Department's response, Attorney Mackin petitioned this office and this appeal, SPRl 8/2079, 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). 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

Ramona Krogman SPR18/2079 Page 2 January 8, 2019 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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § lO(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. The Department's December 13'/z response In its December 13, 2018 response, the Department indicates "[f]or years 2016, 2017, and 2018, records relating to the named employee's work schedule are maintained by the Office of Human Resources within the Executive Office of Health and Human Services (EOHHS). To submit a public records request to EOHHS, please use the following link ..." In his petition for appeal, Attorney Mackin contends" ... it is the duty of the RAO to transmit a request for documents to the related dept. [The Department] shows on its own letterhead that it is a 'part' of EOHHS to which I am now referred. I paid for documents and a search and I'm now told that the RAO was apparently unaware that the documents which I requested were in the same dept but apparently beyond her reach ...." G. L. c. 66, § 1O (b )(ii)-(iii) provides that a written response shall, where applicable, "identify any public records or categories of public records sought that are not within the possession, custody, or control of the municipality and also, identify the agency or municipality that may be in possession, custody or control of the public record sought." Although the Department identified EOHHS as the proper custodian of the requested records, it remains unclear why the Department cannot retrieve the records from EOHHS, especially, given the fact that the Department appears to be a part of EOHHS as indicated on its letterhead. It is additionally uncertain the basis of the fee estimate, if the Department was not in possession of the records responsive to requests 1 and 2, and why the Department did not notify Attorney Mackin of this fact in its initial November 20th response. The Department must clarify these matters. I understand a Public Records Division staff attorney contacted your office about this appeal. Conclusion Accordingly, the Department is ordered to provide Attorney Mackin 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.

Ramona Krogman SPRI8/2079 Page 3 January 8, 2019 Sincerely, Rebecca S. Murray Supervisor of Records cc: Attorney Gerard Mackin, Jr.