Stevan Johnson v. Department of Industrial Accidents (SPR 20191990)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray S11pen1isor of Records October 9, 2019 SPRlS/1990 Bill Taupier Department of Industrial Accidents 1 Congress Street, Suite 100 Boston, MA 02114 Dear Bill Taupier: I have received the petition of Stevan Johnson appealing the response of the Depaiiment oflndustrial Accidents (Depaiiment) to a request for public records. G. L. c. 66, § 1O A; see also 950 C.M.R. 32.08(1 ). Specifically, Mr. Johnson requested, " ... a copy of all electronic mail ( e mail) communications sent to or received from [a n identified individual] by the Depaiiment of Industrial Accidents for the Commonwealth of Massachusetts between May 15, 2018 and September 3, 2019 in connection with SWO# 18-34890 or any other Stop Work Order issued to a Massachusetts taxicab company which [the identified individual] serves as President." 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, § 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 The Department provided Mr. Johnson records responsive to his request on September 19, 2019. In the response, the Depaiiment states, " [a ]ttached are all of the documents in the possession of the DIA that are responsive to this request." Unsatisfied by this response, Mr. 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

Bill Taupier SPR19/1990 Page 2 October 9, 2019 Johnson petitioned this office, and as a result SPRl 9/1990 was opened. In his letter to this office dated September 26, 2019, Mr. Johnson contends he submitted a public records request to the Department on September 3, 2019. He further notes, "[o]n September 19, 2019, the DIA responded to that September 3, 2019, Public Records Request. However, not a single E-mail communication sent from [the identified individuals] was provided." Subsequent to the intervention by a staff member of the Public Records Division, I learned that the Department provided Mr. Johnson all records responsive to his request No Duty to Create Records Please he advised, under the Public Records Law the Department is not required to create a record in response to a public records request. See G. L. c. 66, §6A(d). 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 of records at the time of the request. See G. L. c. 66, § lO(a)(ii). Conclusion Whereas the Department does not possess additional records responsive to Mr. Johnson's request and has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, ~r~ Supervisor of Records cc: Stevan Johnson