Wayne Willis v. Department of Developmental Services (SPR 20200757)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 19, 2020 SPR20/0757 James Bergeron, Esq. Assistant General Counsel Department of Developmental Services 500 Harrison Avenue Boston, MA 02118 Dear Attorney Bergeron: I have received the petition of Wayne Willis appealing the response of the Department of Developmental Services (DDS) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). Specifically, on April 23, 2020, Mr. Willis requested “how much money DDS spends each year on: 1. DDS Institutionalized Clients and 2. DDS Non-Institutionalized clients.” DDS provided a response on May 7, 2020. Unsatisfied with DDS’s response, Mr. Willis petitioned this office and this appeal, SPR20/0757, was opened as a result. 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, § 10A(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. If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. 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

James Bergeron, Esq. SPR20/0757 Page 2 May 19, 2020 Current Appeal In his appeal, Mr. Willis contends the “RAO did not answer the questions that I asked, or supply the records that I requested!” Subsequent to the opening of this appeal, DDS provided a supplemental response to our office on May 11, 2020, including its initial May 7, 2020, response. In its May 7th response, DDS states “[y]our email contained questions and/or requests for information and did not contain requests for public records.” DDS provided Mr. Willis websites where the requested information could be found. In its May 11th email to our office, DDS states it believes “its May 7th response appropriately responded to Mr. Willis’s PRR with existing records or information by furnishing public records by providing assistance in locating the records on appropriately indexed and searchable public website(s).” No Duty to Create Records Please be advised, under the Public Records Law a public employee is not required to answer questions, or do research, or create documents in response to questions. See G. L. c. 66, § 10(a); 32 Op. Atty Gen. 157, 165 (May 18, 1977). Please be advised, 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, § 10(a)(ii). Conclusion In light of DDS’s response to Mr. Willis’s request, and that DDS has no duty to create records responsive to the request, I will now consider this administrative appeal closed. Sincerely, Rebecca S. Murray Supervisor of Records cc: Wayne Willis