Gerard F. Mackin, Jr. v. Department of Youth Services (SPR 20190178)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords February 11, 2019 . SPR19/0l 78 Ramona Krogman Paralegal/R~qn.is Access Officer 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, § lOA; 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." Previous appeal This request was the subject of a previous appeal. See SPRl 8/2079 Determination of the Supervisor of Records (January 8, 2019) (January 8t1 determination). In my January 8th determination, I ordered the Department to provide Attorney Mackin with a response to the request, provided in a manner consistent with the order, the Public Records Law, and its Regulations. Following the January 8th determination, the Department provided a response on January 25, 2019. Unsatisfied with the Department's response, Attorney Mackin petitioned this office and this appeal, SPR19/0178, was opened a~ 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 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 SPR19/0l 78 Page 2 February 11, 2019 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, § 1 O(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 January 2J1h response In my January 3th determination, I indicated that "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." See January 8th determination. In its January 25, 2019 response, the Department explains that "EOHHS is the independent governmental body that controls all human resources services for [the Department] and the other state agencies that report to EOHHS. The EOHHS Office of Human Resources is the custodian of human resource records for [the Department's] employees that may have additional responsive records." The Department explains that "[p] ursuant to G.L. c. 18A, [it] is the Massachusetts administrative agency responsible for providing a comprehensive and coordinated program of delinquency prevention and services to delinquent children and youth referred or committed to the department by the courts; community services for the prevention of juvenile delinquency; and services and facilities for the study, diagnosis, care, treatment, including physical and mental health and social services, education, training and rehabilitation of all children and youth referred or committed." The Department states that "G.L. c. 29, § 1 defines agencies such as [itself] as 'a legal entity of state government established by the General Court as an agency, board, bureau, department, office or division of the commonwealth with a specific mission, which may either report to cabinet-level units of government, known as executive offices or secretariats, or be independent divisions.or departments.' [As such, the Department] reports to [EOHHS]. G.L. c. 6A, § 16." The Department further explains that "[h]uman resources services for EOHHS' agencies . are managed by the EOHHS Office of Human Resources." The Department posits that where the mission statement ofEOHHS is to "'[t]o develop, communicate, and implement human

Ramona Krogman SPR19/0178 Page 3 February 11, 2019 resources services and initiatives in a professional, customer-focused and team-oriented manner, in order to support the mission, goals and strategic direction of EOHHS and its agencies[,]' ... EOHHS is responsible for the creation of all processes and maintenance of all records related to the hiring, recording of time and attendance, and coordination of benefits for the employees of its agencies. [The Department's] employees, including [named employee] enter time and attendance electronically via Self Service Time and Attendance (SSTA). Reports from SSTA for [the Department] employees are only available through the EOHHS Office of Human Resources." Consequently, the Department explains that once it" ... determined that it did not independently have any responsive records regarding 'the days [named employee] was expected to work ... including any statement of her normal work day,' [it] appropriately directed [Attorney Mackin] to the custodian likely to maintain such records, EOHHS." The Department reiterates that Attorney Mackin should direct his request to EOHHS, which is the custodian likely to have responsive records and provides a link to EOHHS's website. In my January 8th determination, I also directed the Department to clarify the basis of its 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. See January 3th dete1mination. The Department explains that its "fee calculation did not include review of records within the possession, custody or control of EOHHS." The Department explains that "[t]he initial search for responsive records included searches of electronically stored information (ESI) in the form of email and network files. Search preparation included determination of search parameters, identification of potential custodians and establishment of search terms. These activities required 5 hours personnel time prior to the preparation of a fee letter. After searches of email, electronic calendars and network files were complete, [the Department] identified approximately 0.13 GB records within its custody and control potentially responsive to your request. [The Department] estimated 6.5 additional hours of personnel time would be required to review for responsiveness, to redact for applicable privileges and exemptions as required by law, and produce these records." The Department explains that the November 20th fee estimate was provided in error and should have been based on 6.5 hours of additional personnel time at $25.00 per hour for a total of $162.50, not $62.50. The Deparj:ment explains that when it proceeded to review the documents after receiving payment for the records, it "sought to determine which ESI would be responsive, [and it] reached out internally to ascertain what records were available regarding the named employee's work schedule and actual attendance. [The Department] determined, after submitting the November 20th fee estimate, that the potentially response records were not in its custody and instead would require a separate request to EOHHS, the custodian of those records." As such, the Depaiiment asserts that it duly notified Attorney Mackin of this when submitting the responsive records within its custody on December 13, 2018. The Department has indicated that "EOHHS is the independent governmental body that controls all human resources services for [the Department] and the other state agencies that

Ramona Krogman SPR19/0178 Page 4 February 11, 2019 report to EOHHS." The Department further stated that its "employees, including [named employee] enter time and attendance electronically via Self Service Time and Attendance (SSTA). Reports from SSTA for [the Department] employees are only available through the EOHHS Office of Human Resources." Under the Public Records Law, 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(b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. G. L. c. 66, § 1O (b )(iii). In light of the Department's supplemental response, I find it has met its burden under G. L. c. 66, § lO(b)(ii) and G. L. c. 66, § lO(b)(iii), in providing records in its possession, custody, or control, and also identifying EOHHS as the proper custodian of certain responsive records. Conclusion Accordingly, I will consider this administrative appeal closed. Sincerely, - ~ Rebecca S. Murray Supervisor of Records cc: Attorney Gerard Mackin, Jr.