James McDonagh v. Massachusetts Department of Transportation (SPR 20190591)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 5, 2019 SPR19/591 William Doyle, Esq. Massachusetts Department of Transportation 10 Park Plaza, Suite 3510 · Boston, MA 02116 Dear Attorney Doyle: I have received the petition of James McDonagh appealing the response of the Massachusetts Department of Transportation (Department) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1). Specifically, Attorney McDonagh requested various categories ofrecords concerning, "the Office of Policy and Employee Relations." On March 22, 2019, the Department expressed to Attorney McDonagh that "MassDOT has contacted the appropriate records holders and, after their search, have found none of the other documents identified in your request." Unsatisfied with the Department's response, Attorney McDonagh petitioned this office and as a result SPR19/591 was opened. 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, § 1 O(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Attorney for the Norfolk Dist. v. Flatley, 419 Mass. 507,511 (1995) (c ustodian 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. Current Appeal In a letter to this office dated March 22, 2019, Attorney McDonagh states, "[a]s public records law requires the maintenance of records, such as resumes, job applications, job postings, Form 30's, etc., and as I am of the belief that Mr. Concepcion has not been employed by 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

William Doyle, Esq. SPR19/591 Page 2 April 5, 2019 MassDOT for seven years, said records, subject to redaction as allowed by law, are required to be maintained and provided pursuant to the Public Records Law." In light of the issues raised in Attorney McDonough's appeal regarding the existence of responsive records, I find it is unclear why additional responsive records have not been provided. Specifically, the Department must explain whether responsive records existed and were destroyed, or whether the records did not initially exist. See G. L. c. 66, § lO(a)(ii), (b)(ii). If such records were destroyed, the Department must demonstrate whether it followed proper records retention protocol. Please note, the Department must institute safeguards to ensure that all records are retained in accordance with both applicable law as well as the retention schedules promulgated by this office. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Department to review the Records Retention Manual, available online: www.sec.state.rna.us/arc/arcrmu/rmuidx.htm. Conclusion Accordingly, the Department is ordered to provide Attorney McDonagh with a response provided in a manner consistent with this order, the Public Records Law, and its Regulations within 10 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: James McDonagh, Esq.