William Christina v. Division of Occupational Licensure (SPR 20190961)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor ofR ecords May 29, 2019 SPR19/961 Jean McCarthy Records Access Officer Division of Professional Licensure Office of Public Safety and Inspections 1000 Washington Street, Suite 710 Boston, MA 02118 Dear Ms. McCarthy: I have received the petition of William Christina appealing the response of the Division of Professional Licensure - Office of Public Safety and Inspections (Office) to a request for public records. G. L. c. 66, § 1 OA; see also 950 C.M.R. 32.08(1 ). Specifically, on March 14, 2019, Mr. Christina requested: 1. Any and all communications between Robert Anderson (OPSI/DPS/DPL) and Tom Hardiman, Modular Building Institute, Modular Home Builders Association and Hardiman Williams LLC, 944 Glenwood Station Lane, Charlottsville, VA 22901, from January 1, 2016 to present; and 2. Any and all Massachusetts State Building Code proposed amendments made by Tom Hardiman regarding 780 C.M.R. 110.R3, including but not limited to any related communications and all attachments and/or supporting documentation, from January 1, 2016 to the present. Mr. Christina indicated in his March 14th request, "[c]ommunications for purposes of this request includes but not limited to emails, correspondences, notices, letters, memorandums, reports, forms and associated attachments." To facilitate the search for emails, Mr. Christina provided Mr. Hardiman' s email addresses. On March 26, 2019, the Office provided Mr. Christina with responsive records. After review of the records provided to him, Mr. Christina petitioned the Supervisor of Records (Supervisor) indicating that he was not provided with all the responsive records. As a result of Mr. Christina's petition to the Supervisor, this appeal was opened. 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

Jean McCarthy SPR19/961 Page2 May 29, 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, § 1 O(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 which the withholding is based ... "); 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). Duty to identify records in its possession, custody and control; Records management/retention In your March 26th response, you informed Mr. Christina, "[n]o whole documents or records were withheld." However, after receipt of this response and transmittal of records, Mr. Christina reviewed the records and contends that he was not provided with all the responsive records. In his petition, he states, "[i]t is apparent that there were omissions of communications and documentation given the references to other documentation, attachments and information within the provided exchanges, in particular (including but not limited to) all requested materials from 2016 as well as several individual omissions from 2017, 2018 and 2019." 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). In light of the issue raised by Mr. Christina's May 12th appeal regarding the possible existence of additional responsive records, and despite the Office's response, I find it is unclear whether the Office possesses further responsive records. Specifically, the Office must explain whether the 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 Office must demonstrate whether it followed proper records retention protocol. Please note, all municipalities and agencies 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 and the Records Conservation Board. G. L. c. 66, §§ 1, 8, 13, 15. I advise the Office to review the Massachusetts Statewide Agency Records Retention Schedule, available online at: www.sec.state.ma.us/arc/arcpdf/MA Statewide Records Schedule.pdf.

Jean McCarthy SPR19/961 Page 3 May 29, 2019 I also encourage the parties to work together in order to identify the records sought that have not been provided, including identifying the records from 2016-2019 that are responsive to Mr. Christina's request and further inquiry. Conclusion Accordingly, the Office is ordered to provide Mr. Christina with a response to the request, 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: William Christina