Alan Sliski v. Appellate Tax Board (SPR 20191889)

The Commonwealth of Massachusetts . William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pe111isor of Records October 1, 2019 SPR19/1889 Mark J. DeFrancisco Chief Counsel Massachusetts Appellate Tax Board. 100 Cambridge Street Suite 200 Boston, MA 02114 Dear Attorney Defrancisco: I have received the petition of Alan Sliski appealing the response of the Massachusetts Appellate Tax Board (Board) a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1). Originally, Mr. Sliski sent a request to the Board seeking three categories of records within the Board's possession. The Board provided a response to Mr. Sliski on August 20, 2019. In an email on September 16, 2019, Mr. Sliski appealed the Board's response to this office. Appeal Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within ten business days ofreceipt of the request. G. L. c. 66, § IO(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § lO(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. 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), (b)(ii). Also, the duty to comply with requests for records extends to identifying the agency or municipality that may be in possession, custody, or control of the public record sought, if known. See G. L. c. 66, § lO(b)(iii). It is the burden of the records custodian t.o demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § lO(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 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

Mark J. DeFrancisco, Esq. SPR19/1889 Page 2 October 1, 2019 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). In Mr. Sliski's appeal he contends that he did not receive the "original digital file of the hearing schedule for the week including 5/2/2018." Mr. Sliski further indicates he "received a Hearing Notice, a scanned pdf of a paper document. Neither the original hearing schedule was produced in its original digital file, nor the hearing notice, which is not a hearing schedule, in its original digital file format, most likely a Word document were produced as requested." It is unclear if the Board possesses any records responsive to Mr. Sliski's request. See G. L. c. 66, § lO(a)(ii), (b)(ii), (iii). Specifically, the Board must explain whether the requested 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 Board must demonstrate whether it followed proper records retention protocol. Conclusion Accordingly, the Board is ordered to provide Mr. Sliski 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: Alan Sliski