Stevan Johnson v. Office of Consumer Affairs and Business Regulation (SPR 20191384)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records July 22, 2019 SPR19/1384 Joanne Farrell Campo, Esq. Office of Consumer Affairs and Business Regulation Ten Park Plaza, Suite 5170 Boston, MA 02116 Dear Attorney Campo: I have received the petition of Steven Johnson appealing the response of the Office of Consumer Affairs and Business Regulation (Office) to a request for public records. G. L. c. 66, § lOA; see also 950 C.M.R. 32.08(1) Specifically on June 24, 2019, Mr. Johnson requested "a copy of each application in any form being kept (i.e.: electronic, paper, etc.) in the possession, custody, or control of the of Division of Standards of the Office of Consumer Affairs and Business Regulations for the Commonwealth of Massachusetts which submitted on or after October 22, 2009, presumably pursuant to M.G.L. c. 94 § 295B, by the 'persons who own the business' on the land located at 60 Kilmarnock • Street Boston, Massachusetts 02215." Tlte 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. Current Appeal In a letter to Mr. Johnson dated June 8, 2019 the Office states, "[a]fter review, the Division is not in possession of any responsive records." Unsatisfied with this response, Mr. Johnson petitioned this office and as a result SPRl 9/13 84 was opened. One Ashbmion Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre• pre@sec.state.ma.us

SPR19/1384 Attorney Campo Page 2 July 22, 2019 In a follow-up letter to Mr. Johnson dated July 19, 2019, the Office writes, "[t]his Office has been informed by the Division of Standards that it does possess records of applications, which are kept in paper format and are stored in boxes. At present, there is no database for the Division to store and access this information readily." The office notes, "[t]he process, instead, involves a search through binders for the reference number of the licensee for the particular year, and then a search of related boxes to locate the paper application for that year." The Office explains it "has directed staff to perform a search for the specific records requested by Mr. Johnson and anticipates that in accordance with M.G.L. c. 66, §lO(b) and 950 C.M.R. 32.07(2), there will be a charge to process the production. The charge will include employee time to fulfill the request, excluding the first four (4) hours. From a search and retrieval time to complete one of the above requested applications, the Office is expected to be able to extrapolate an estimated cost to complete the production and approximate date of production. The estimated charge will be provided in a separate letter to Mr. Johnson." Conclusion In light of the Office's July 19th letter as well as its communications with this office, this office encourages Mr. Johnson and the Office to continue to communicate to facilitate providing records more efficiently and affordably. See G. L. c. 66, § lO(b)(vii) (an agency shall suggest a reasonable modification of the scope of the request or offer to assist the requestor to modify the scope of the request if doing so would enable the agency to produce records sought more efficiently and affordably). Any fee estimate by the Office must be in compliance with this determination, the Public Records Law, and its Access Regulations. If unresolved issues remain, Mr. Johnson may appeal the substantive nature of the Office's response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, ~ I T ~ Supervisor of Records cc: Stevan Johnson