Susan Smith v. Executive Office of Technology Services and Security (SPR 20190453)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords March 11, 2019 SPR19/0453 Michelle Burwell Executive Office of Technology Services and Securities One Ashburton Place, Room 804 Boston, MA 02108 Dear Ms. Burwell: I have received the petition of Susan Smith appealing the response of the Executive Office of Technology Services and Securities (Office) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Ms. Smith requested"[a ]ll settlement agreements effective on or after January 1, 2014 between EOTSS (formerly MassIT and ITD) and any vendors, contractors, employees or other third parties relating to settlement of any legal claims." The Office responded to her request by providing redacted responsive records. 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. 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. 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

Michelle Burwell SPR19/0453 Page2 March 11, 2019 Burden of specificity in responding and claiming exemptions Pursuant to the Public Records Law, the burden shall be upon the records custodian to establish the applicability of an exemption. G. L. c. 66, § 1O (b )(iv) (written response must "identify any records, categories of records or portions of records that the agency or municipality intends to withhold, and provide the specific reasons for such withholding, including the specific exemption or exemptions upon whieh the withholding is based, .. "); see also Globe Newspaper Co. v. Police Comm'r, 419 Mass. 852, 857 (1995); Flatley, 419 Mass. at 511. Although the Office provided responsive records, it is unclear which exemptions under the Public Records Law the Office is claiming to withhold redacted portions or how the exemptions apply to withhold the redacted portions of the responsive records. The Office must provide a detailed response to specifically explain how the exemptions apply to withhold the redacted portions of the requested records in compliance with the Public Records Law. Conclusion Accordingly, the Office is ordered to provide Ms. Smith 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. Sincerely, Rebecca S. Murray Supervisor of Records cc: Susan Smith