James P. McKenna, Esq. v. Bureau of the State House (SPR 20200788)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records May 29, 2020 SPR20/0788 Tammy E. Kraus Superintendent Bureau of the State House State House, Room 1 Boston, MA 0213 3 Dear Superintendent Kraus: I have received the petition of Attorney James P. McKenna of The Pioneer Institute appealing the response of the Bureau of the State House (Bureau) to a request for public records. G. L. c. 66, § l0A; see also 950 C.M.R. 32.08(1). Specifically, Attorney McKenna requested the following records: “Copies of any and all materials containing data which documents the entry into the State House or adjoining facilities during the year 2016 (from January 1, 2016, through and including December 31, 2016) by members of the Massachusetts Legislature (members of the Senate and members of the House of Representatives), [including] ‘card swipe data,’ which data would be generated upon the swiping of identification or entry cards by the legislators.” Unsatisfied with the Bureau’s response, Attorney McKenna appealed and SPR20/0788 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) (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 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

Tammy E. Kraus SPR20/0788 Page 2 May 29, 2020 exemption or exemptions upon which the withholding is based…”); 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). The Bureau’s February 21, 2020 response Upon review of the Bureau’s February 21st response, it remains unclear what responsive records the Bureau possesses. The Bureau must clarify what records it has in its possession, custody or control that are responsive to Attorney McKenna’s request. See G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3)(c)(4) (a records access officer must provide a written response that identifies the record, categories of records, or portions of the record it intends to withhold). Order Accordingly, the Bureau is ordered provide Attorney McKenna with a response to the request in a manner consistent with this order, the Public Records Law, its Regulations as soon as is practicable. 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: James P. McKenna, Esq.