Arthur A. Butler v. Department of Conservation and Recreation (SPR 20190806)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 2, 2019 SPR19/0806 Bridge Connelly, Esq. Department of Conservation and Recreation 251 Causeway Street Boston, MA 02114 Dear Attorney Connelly: I have received the petition of Arthur A. Butler appealing the response of the Department of Conservation and Recreation (Department) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Specifically, Mr. Butler requested copies of "certified payrolls" for a certain entity. The Department responded to his request providing 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, § 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. Appeal In Mr. Butler's petition for appeal he alleges that "[t]he records [he] received from 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

Arthur A. Butler SPR19/0806 Page 2 May 2, 2019 Mass.DCR did not have employyee [sic] addresses atyached [sic] to the certified payrolls." While this appeal was pending, the Department provided another response to Mr. Butler on April 23, 2019. In its April 23rd response, the Department indicates that "the documents DCR provided in response to [Mr. Butler's] inquiry have not been redacted, modified or altered; we provided the records we received from the contractor in their original state. Regardless of any information that may not be included in those records, DCR can only provide the records that we have in our possession. See G.L. c. 4, § 7(26) public records are defined as materials that have already been "made or received" by a public entity; the custodian is not obligated to create a record in response to a request for information (32 Op. Atty. Gen. 157, 165 (May 18, 1977))." Certified payroll records The Department is advised that G. L. c. 149, § 27B, pertaining to certified payroll records, states in relevant part: Every contractor, subcontractor or public body engaged in said public works by an agency, executive office, department, board, commission, bureau, division or authority of the commonwealth or county, or municipality or any subdivision thereof to which sections twenty-seven and twenty-seven A apply shall keep a true and accurate record of all mechanics and apprentices, teamsters, chauffeurs and laborers employed thereon, showing the name, address and occupational classification of each such employee on said works, and the hours worked by, and the wages paid to, each such employee, and shall submit weekly to the awarding authority by mail, first class postage prepaid, or by electronic mail, certified payroll records that shall consist of a complete copy of those records ... The above-mentioned copies of payroll records and statements of compliance shall be available for inspection by any interested party filing a written request to the awarding authority for such inspection and copying. G. L. C. 149, § 27B. Despite the Department's response, based on the above referenced statute's requirements that: 1) the address of each employee be included on the certified payroll records; and 2) copies of those payroll records must be made available for inspection to any interest party, it is unclear why the addresses were not included in the responsive records. I find the Department must provide additional information regarding this issue. Agency The Department is advised that where a public entity contracts with a third party to fulfill its public duties, and the public entity exercises control over that third party, an agency relationship is created. See Fifty-one Hispanic Residents of Chelsea v. School Comm. of

Arthur A. Butler SPR19/0806 Page 3 May 2, 2019 Chelsea, 421 Mass. 598, 607 (1996) (while subject to control of a public entity as a principal for purposes of performing public duties, private university is a public agent). Wherever a record custodian keeps original public records in a location other than the government building, he or she has a duty to make the public records available in a location convenient to the general public for inspection and copying. Based on the Department's response, it is uncertain whether an agency relationship exists between the Department and the third party. Given that the Department recognizes the third party as a contractor in its response, it is unclear how an agency relationship does not exist between the Department and the contractor. As such, it is uncertain why the Department would not be entitled to request or obtain the addresses from the third party. 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). I find the Department must provide additional information regarding this issue. Order Accordingly, the Department is ordered to provide Mr. Butler 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, ~.~ Supervisor of Records cc: Arthur A. Butler