Ronald Goldman v. Office of the State Auditor (SPR 20190086)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records January 29, 2019 SPR19/0086 Michael P. Ruane, Esq. Deputy General Counsel Office of the State Auditor One Ashburton Place, Room 1819 Boston, MA 02108 Dear Attorney Ruane: I have received the petition of Ronald Goldman, Ph.D. appealing the response of the Office of the State Auditor (Office) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, on August 27, 2018, Dr. Goldman requested the following records: "1. All internal and external (received by and sent by the SAO to and from an outside office) communications and documents of all SAO staff directly or indirectly related to my Complaint submitted 6/27/18 (June 2ih correspondence) to [an identified individual] and continuing to the date the requested records are provided to me. 2. Since the SAO website states that all information is 'promptly reviewed upon receipt,' include all such reviews of my Complaint." The Office provided a response on August 27, 2018, acknowledging receipt of the request and advising Dr. Goldman that a fee estimate would be provided. On August 30, 2018, Dr. Goldman narrowed his request for e-mail communications involving six identified individuals regarding his June 2ih correspondence (August 30th request). The Office provided a response on September 7, 2018, which included responsive records. Following receipt of responsive records, Dr. Goldman made another public records request on October 3, 2018 (October 3rd request). In his October 3rd request, Dr. Goldman requested "[a]ll internal and external (received by and sent by the OSA to and from an outside office) records other than email records you previously sent, according to a, b, and c. a. These records shall be of the six OSA employees previously identified plus [three identified individuals]. 11 b. These records shall be directly or indirectly related to my [June 2?1 correspondence] and continuing to the date the requested records are provided to me. 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 P. Ruane, Esq. SPR19/0086 Page 2 January 29, 2019 c. Since the OSA website states that all information is 'promptly reviewed upon receipt,' these records shall include reviews and comments about my Complaint." The Office provided a response on October 18, 2018, indicating that it does not possess responsive records. Unsatisfied with the Office's October 18th response, Dr. Goldman petitioned this office and this appeal, SPRl 9/0086, was opened as a result. While this appeal was pending, the Office provided a supplemental response on January 15, 2019. 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 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, § 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 Office's January 15th supplemental response In its January 15, 2019 supplemental response, the Office requests that the Supervisor of ih Records dismiss Dr. Goldman's appeal regarding its September response because it is untimely. The Office further states that it" ... has provided [Dr. Goldman] with all responsive records in its possession, custody, and control regarding [his] public records requests of both August 27, 2018 and October 3, 2018. The [Office] did not redact or withhold any responsive records from [Dr. Goldman] in response to either of his [requests]." August 3(jh request With respect to Dr. Goldman's August 30th request, the Office provided a response on ih September 7, 2018. The Office's September request indicated that it "attached the ... records responsive to [Dr. Goldman's] request." If Dr. Goldman is appealing this response, please be advised that the Public Records Access Regulations, which govern the procedural aspects of all appeals, require that an appeal to

Michael P. Ruane, Esq. SPR19/0086 Page 3 January 29, 2019 this office be filed within ninety (90) days of the date of the request letter, or within ninety (90) days of the date of a written response from the record custodian. See 950 C.M.R. 32.08 (1 )(d ); 950 C.M.R. 32.08 (l)(e). The attachments you provided with your appeal have exceeded the ninety day limit. You may make a new request to the Office for the same information. The Office has ten (10) business days in which to respond to your new request. G. L. c. 66, § 1O (b ). If the Office denies your request or fails to respond within ten business days, you may appeal to this office within the statutory time frame. At that time this office will review the matter. October 3'd request With respect to Dr. Goldman's October 3rd request, the Office provided a response dated October 18, 2018, indicating that it" ... does not possess or maintain any records responsive to your request other than the records the [Office] provided [Dr. Goldman] on September 7, 2018." In accordance with the Public Records Law, a custodian is expected to use their superior knowledge of the records in his custody to assist the requestor in obtaining the desired information. 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). A records access officer (RAO) must explain whether it possesses any other responsive records and use its knowledge of the records to facilitate providing any additional responsive records. Additionally, under the Public Records Law, the Office is not required to create a list of records or any record in response to a public records request. In addition, a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § lO(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Consequently, whereas the Office has confirmed that it is not in possession of records responsive to Dr. Goldman's October 3rd request, I find that Dr. Goldman's appeal regarding this request has been resolved. Conclusion Accordingly, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray~ Supervisor of Records cc: Ronald Goldman, Ph.D.