Emmett S. Muldoon v. Executive Office of Elder Affairs (SPR 20200631)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records April 14, 2020 SPR20/0631 Lesley Moreau Records Access Officer Executive Office of Elderly Affairs One Ashburton Place, 5th Floor Boston, MA 02108 Dear Lesley Moreau: I have received the petition of Emmett Muldoon appealing the nonresponse of the Executive Office of Elderly Affairs (Office) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1) Specifically, on March 4, 2020, Mr. Muldoon requested seven categories of records concerning the Office. 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, § l0A(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, § 10(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. Subsequent to the intervention by a staff member of the Public Records Division, I learned that the Office is aware of this appeal and is working on a response. In a letter to this office dated April 14, 2020, you state, “[t]hank you for forwarding to our office Emmett Muldoon’s letter dated March 26, 2020 wherein he appeals a public records request dated March 4, 2020 (‘PRR’) mailed to the Executive Office of Elder Affairs (EOEA). The letter was sent in early March and Governor Baker’s Stay at Home Order for COVID-19 was issued beginning March 16, 2020. As a result, EOEA was unable to process the PRR.” You further note, “EOEA will provide a response to the PRR directly to the requester, Mr. Muldoon, on or before April 21, 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

SPR20/0631 Lesley Moreau Page 2 April 14, 2020 2020 (10 business days after EOEA’s receipt).” Conclusion The Office is ordered to provide Mr. Muldoon with a written response. Said response must be made in accordance with the Public Records Law, its Access Regulations and this order as soon as practicable. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Mr. Muldoon may appeal the substantive nature of the Office’s response within ninety days. See 950 C.M.R. 32.08(1). Sincerely, Rebecca S. Murray Supervisor of Records cc: Emmett Muldoon